Opinion
Civil Action 1:21-cv-373-HSO-MTP
12-11-2024
OREN LEWIS PETITIONER v. BRAND HUFFMAN RESPONDENT
REPORT AND RECOMMENDATION
MICHAEL T. PARKER UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is the Amended Petition for Writ of Habeas Corpus [6] pursuant to 28 U.S.C. § 2254 filed by Oren Lewis. Having considered the parties' submissions, the state court record, and the applicable law, the undersigned recommends that the Petition [6] be DENIED.
BACKGROUND
On June 16, 2017, Petitioner Oren Lewis was convicted of capital murder for the death of his two-year-old daughter, Ma'Leah Bush. At the time of the murder in August of 2013, Petitioner lived in Waveland, Mississippi, with his then-wife Amanda Proulx and four children- the couple's two sons (one seven years old and the other three months old), Proulx's nine-year-old daughter, and Petitioner's two-year-old daughter, Ma'Leah. Proulx worked nights at Ochsner's Hospital in Slidell, Louisiana. On August 25, 2013, around 6:15 p.m., Proulx left for work, leaving the children in Petitioner's care. Later that night, Petitioner called 911 and reported that Ma'Leah had fallen from her bed.
Rita Miller is Ma'Leah's mother.
Paramedics transported Ma'Leah to Hancock Medical Center, arriving at 11:34 p.m. Later, around 3:00 a.m. on August 26, 2013, Ma'Leah was airlifted to the Children's Hospital in New Orleans. Ma'Leah died the next day, August 27, 2013.
An autopsy revealed that Ma'Leah had suffered a complex skull fracture, brain hemorrhaging, and bruising all over her body, including her eyelids, her left ear, the left side of her head, her chest and abdomen, her left arm, her right leg, and her back.
On May 21, 2015, Petitioner was indicted for capital murder for Ma'Leah's death. At trial, the jury heard from many witnesses, including Petitioner, his wife, his son, and his stepdaughter. The jury also heard testimony from investigating officers and medical professionals who treated Ma'Leah.
Petitioner claimed that he checked on Ma'Leah after he heard a “boom” and found her unresponsive, with her right foot caught in the wire of a trundle bed and her head and body on the carpeted floor next to the bed. However, multiple medical doctors testified that the extensive injuries Ma'Leah suffered were not caused by accidental trauma. The jury found Petitioner guilty, and he was sentenced to life imprisonment without the possibility of parole.
Petitioner, through counsel, appealed his conviction and sentence to the Mississippi Supreme Court, raising the following grounds for relief:
I. Miss. Code Ann. § 97-5-39(2), as amended, is unconstitutionally vague under the due process, notice, fair trial and effective assistance of counsel provisions of the Mississippi and United States Constitutions
II. The court erred in not dismissing due to disposal of tissue samples and not giving a spoliation instruction
III. The charging indictment does not set out the essential elements of the crime in violation of the due process, notice, fair trial and effective assistance of counsel provisions of the Mississippi and United States Constitutions
IV. The conviction and sentence in this case must be vacated because the indictment failed to charge the proper elements to sentence to life without parole in violation of the due process, notice, fair trial freedom from cruel and unusual punishment and jury trial provisions of the Mississippi and United States Constitutions
V. The trial court erred in allowing the jury to consider the aggravator/element of child abuse in support of a sentence of life without parole, denying Lewis of a reliable sentence as guaranteed by the United States and the Mississippi Constitutions
VI. Court improperly sentenced defendant to life in prison without parole in violation of the due process, notice, fair trial, cruel and unusual punishment and effective assistance of counsel provisions of the Mississippi and United States Constitutions
VII. Court erroneously allowed admission of 404(b) material in violation of the due process, notice, fair trial and effective assistance of counsel provisions of the Mississippi and United States Constitutions([13-13] at 10-11). The Mississippi Supreme Court assigned the case to the Mississippi Court of Appeals, and on October 29, 2019, the court of appeals affirmed Petitioner's conviction and sentence in a written opinion. See Lewis v. State, 295 So.3d 521 (2019).
On March 3, 2020, Petitioner filed a petition for writ of certiorari in the Mississippi Supreme Court, seeking review of three of the issues (I, II, and VI) raised in his appeal. ([13-15] at 10-17). On May 6, 2020, the supreme court denied the petition for writ of certiorari. ([13-15] at 7).
On August 4, 2021, Petitioner sought leave from the Mississippi Supreme Court to file a motion for post-conviction collateral relief in which he asserted the following grounds for relief:
(1) Petitioner was denied a fair and impartial jury;
(2) trial counsel was ineffective;
(3) the jury was selected in violation of the Constitution and Batson v. Kentucky, 476 U.S. 79 (1986); and
(4) there was spoliation of evidence, the State violated Brady v. Maryland, 373 U.S. 83 (1963), and there is newly discovered evidence.([17]).
On September 28, 2021, the Mississippi Supreme Court denied Petitioner's PCR motion, holding as follows:
After due consideration, we find that Lewis does not present a substantial showing that he was denied either a fair trial by an impartial jury or effective assistance of counsel. See Miss. Code Ann. § 99-39-27(5). Next, because the alleged Batson violation was raised at trial and capable of determination on direct appeal but not asserted, we find that his Batson claim is waived. See Miss. Code Ann. § 99-3921(1). Notwithstanding the waiver bar, Lewis does not present a substantial showing that a Batson violation occurred. See Miss. Code Ann. § 99-39-27(5). In addition, we find that his spoliation claim is barred by the doctrine of res judicata. See Miss. Code Ann. § 99-39-21-(3). Finally, we find that the new evidence is insufficient to meet the newly-discovered-evidence standard. See Havard v. State, 86 So.3d 896, 906 (Miss. 2012); Ormond v. State, 599 So.2d 951, 962 (Miss. 1992). Nor does Lewis present a substantial showing that the State violated Brady. See Miss. Code Ann. § 99-39-27(5).([17-1] at 15).
On November 17, 2021, Petitioner filed his federal Petition for Writ of Habeas Corpus [1], which he amended on January 13, 2022. See Amended Petition [6]. Petitioner raises the same grounds for relief he asserted in his post-conviction collateral relief motion. On April 6, 2022, Respondent filed a Response [12] opposing the Petition, and on June 6, 2022, Petitioner filed a Reply [23].
STANDARD OF REVIEW
The standard of review for habeas claims to be applied by this Court is set forth in 28 U.S.C. § 2254(d), which provides that a federal court may not grant habeas relief unless the state court's adjudication of the claims “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The “contrary to” and “unreasonable application” clauses of Section 2254(d)(1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694 (2002).
The “contrary to” clause applies when the state court fails to apply a legal rule announced by the Supreme Court or reaches a result opposite to a previous decision of the Court on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The “unreasonable application” clause applies when the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Id. at 407-08. The “unreasonable application” inquiry is based on an objective standard, and “unreasonable” does not equate with “incorrect.” Garcia v. Dretke, 388 F.3d 496, 500 (5th Cir. 2004).
Habeas corpus serves as “a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (internal quotations omitted). Federal habeas relief is precluded unless the state court's decision was “so lacking in justification” that the error is “beyond any possibility for fairminded disagreement.” Id. A federal court does not “sit as a ‘super' state supreme court” and may decide the issues presented by the habeas petition “only to the extent that federal constitutional issues are implicated.” Smith v. McCotter, 786 F.2d 697, 700 (5th Cir. 1986).
Deference applies even when the state court decides an issue without fully explaining its reasoning. See Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003). This is “[b]ecause a federal habeas court only reviews the reasonableness of the state court's ultimate decision,” “not the written opinion explaining that decision.” Id. Thus, in reviewing a state court opinion, this Court focuses on “the ultimate legal conclusion that the state court reached and not on whether the state court considered and discussed every angle of the evidence.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002).
ANALYSIS
Ground 1: Fair and Impartial Jury
Petitioner claims that he was denied a fair and impartial jury because one of the jurors, Kimberly Burlette, knew both Petitioner and Rita Miller (Ma'Leah's mother) but failed to acknowledge this during voir dire. To obtain a new trial for a juror's non-disclosure during voir dire, “a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984). “To demonstrate actual bias, admission or factual proof of bias must be presented.” Buckner v. Davis, 945 F.3d 906, 911 (5th Cir. 2019).
During voir dire, the trial court asked the potential jurors whether any of them were related to or personally acquainted with Petitioner or the prosecution's potential witnesses, including Rita Miller. ([13-6] at 67, 106). Juror Burlette gave no indication that she knew either Petitioner or Miller.
After Petitioner's conviction, he filed a motion for new trial arguing, in part, that Juror Burlette and Miller were friends on Facebook. ([13-3] at 125). The trial court conducted a hearing on the motion, during which Miller testified that she did not know Burlette. ([13-11] at 61-63). Noting this testimony, the trial court held that there was “[n]othing before the Court that would indicate anything inappropriate.” ([13-11] at 90).
Petitioner raised this issue in his post-conviction collateral relief motion filed on August 4, 2021, and submitted a signed statement from an individual named Tennille Johnson. ([17] at 134-36). According to Johnson, on June 12, 2017, she read an article on the “Seaecho Website,” stating that a juror knew Petitioner and Miller. Johnson alleged that Burlette was her coworker, and on June 13, 2017, she asked Burlette about the article. According to Johnson, Burlette stated that she knew Petitioner and Miller because she and Miller were friends on Facebook. ([17] at 134-35). Johnson also stated that she saw Burlette and Miller “talking and texting on Facebook long before the baby died.” ([17] at 135). After considering Petitioner's PCR motion, the Mississippi Supreme Court held that Petitioner failed to make a substantial showing that he was denied a fair trial by an impartial jury. ([17-1] at 15).
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), the role of a federal court is to determine whether the state court's factual finding was unreasonable in light of the evidence. See 28 U.S.C. § 2254(d)(2); Miller-El v. Dretke, 545 U.S. 231, 240 (2005). In making that determination, the federal court is to presume the state court's factual findings were correct, and that presumption can be rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El, 545 U.S. at 240. “[T]he presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact.” Sumner v. Mata, 455 U.S. 591, 593 (1982).
Petitioner provides no clear and convincing evidence to overcome the presumption of correctness given to the state court's findings. Petitioner cites to Johnson's signed statement, but this statement does not constitute clear and convincing evidence that Juror Burlette failed to honestly answer a material question. Johnson's statement is based on hearsay, and as Respondent points out, it is unreliable. Johnson claims she read an article on June 12, 2017, concerning a juror knowing Petitioner and Miller. But, voir dire did not begin until June 13, 2017. ([12] at 22; [13-6] at 58). Additionally, Johnson's statement is contradicted by Miller's specific testimony that she did not know Burlette. ([13-11] at 61-63). The Mississippi Supreme Court considered the evidence, including Johnson's signed statement, and Petitioner has not shown that the state court's factual findings were unreasonable.
Additionally, even if Burlette were acquainted with Petitioner and Miller, Petitioner has failed to establish that her “correct response would have provided a valid basis for a challenge for cause.” McDonough, 464 U.S. at 556. In Mississippi, “any person not disqualified under Mississippi Code Annotated Section 13-5-1, who will make oath that he or she is impartial, is competent to sit as a juror in a criminal case,” and “[a] tangential relationship with the victim in a criminal case, by itself, is not a sufficient reason to exclude a potential juror for cause.” Archer v. State, 986 So.2d 951, 957 (Miss. 2008). Here, Burlette confirmed that she could be fair and impartial, and Petitioner has not established that she would have been disqualified had she been acquainted with Petitioner and Miller. ([13-6] at 133).
As Petitioner has not established that the supreme court's decision on this issue is contrary to, or involves an unreasonable application of, clearly established federal law, or that the decision was based on an unreasonable determination of the facts in light of the evidence, habeas relief on this claim should be denied.
Ground 2: Ineffective Assistance of Counsel
Petitioner argues that his trial counsel provided him ineffective assistance. In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court defined the standard of review for an ineffective assistance of counsel claim in a habeas proceeding. Petitioner must show that his “counsel's performance was deficient” and that “the deficient performance prejudiced the defense.” Strickland, 466 U.S at 687. To establish a deficiency, Petitioner must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed . . . by the Sixth Amendment.” Id. This Court's “scrutiny of counsel's performance must be highly deferential” and it “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689; see also Moawad v. Anderson, 143 F.3d 942, 946 (5th Cir. 1998) (observing that the court “gives great deference to counsel's assistance, strongly presuming that counsel has exercised reasonable professional judgment”) (internal quotations and citations omitted).
“To meet the prejudice prong of the Strickland test, the defendant may not simply allege but must ‘affirmatively prove' prejudice.” Bonvillain v. Blackburn, 780 F.2d 1248, 1253 (5th Cir. 1986) (citing Celestine v. Blackburn, 750 F.2d 353, 356 (5th Cir. 1984)). Further, Petitioner must not only prove that the outcome of his trial would have been different “but for counsel's alleged errors,” but he must also prove that “‘the result of the proceedings was fundamentally unfair or unreliable.'” Vuong v. Scott, 62 F.3d 673, 685 (5th Cir. 1995) (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)). An ineffective assistance of counsel claim must be stated with specificity. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990). Summarily reciting general complaints about counsel's performance without discussing their specific basis or how application of the law purportedly justifies relief does not state a claim for habeas review. Hughes v. Dretke, 412 F.3d 582, 597 (5th Cir. 2005); Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000) (“[C]onclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding.”).
The Mississippi Supreme Court reviewed the claims of ineffective assistance of counsel raised in Petitioner's PCR motion and determined that Petitioner failed to meet his burden of establishing such claims. ([17-1 at 15]). Given that the ineffective assistance of counsel claims before this Court present mixed questions of law and fact and that Strickland is the “clearly established Federal law” which governs such claims, the issue in this case is “whether the Mississippi Supreme Court's decision to reject [Petitioner's] ineffective assistance claim[s] ‘involved an unreasonable application' (and not merely an incorrect application) of Strickland.” Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002). Thus, this Court's review is “doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
Nixon v. Epps, 405 F.3d 318, 324 (5th Cir. 2005).
Here, Petitioner argues that trial counsel provided ineffective assistance because he failed to utilize expert witnesses, failed to request a taint hearing to test the reliability of Petitioner's stepdaughter, failed to challenge the opinions of the state's expert witness, and failed to utilize testimony from prior youth court proceedings during the cross examinations of the State's witnesses. As explained below, none of these arguments entitle Petitioner to habeas relief.
Utilization of Experts
Petitioner argues that trial counsel failed to utilize experts to present an alternate theory for Ma'Leah's injuries and to challenge the testimony of Petitioner's stepdaughter, Michaela Walker. The United States Court of Appeals for the Fifth Circuit “has repeatedly held that complaints of uncalled witnesses are not favored in federal habeas corpus review because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have stated are largely speculative.” Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009).
To prevail on a claim based on the failure to call a lay or expert witness, Petitioner must: (1) name the witness, (2) demonstrate that the witness was available to testify and would have done so, (3) set out the content of the witness's proposed testimony, and (4) show that the testimony would have been favorable to a particular defense. Id. Petitioner must also demonstrate prejudice by showing a “reasonable probability that but for counsel's failure to call a[n] . . . expert . . . the jury would not have convicted [him].” Woodford v. Cain, 609 F.3d 774, 809 (5th Cir. 2010).
Concerning Ma'Leah's injuries, Petitioner argues that with a proper investigation and expert testimony, “trial counsel could easily have shown that this child was injured from an accidental fall.” ([6] at 27). Along with his PCR motion, Petitioner submitted an affidavit, a report on cause of death, and a supplement to the report from Dr. George Nichols, a physician certified in anatomic pathology, clinical pathology, and forensic pathology. ([17] at 193-99).
Petitioner's submissions, however, do not demonstrate that Dr. Nichols was available to testify and would have done so, which are required to prevail on this claim. Moreover, Petitioner has failed to demonstrate that Dr. Nichols's testimony would have been favorable to his defense. Nor has he shown a reasonably probability that, but for counsel's failure to call Dr. Nichols, the jury would not have convicted him.
In his initial report, Dr. Nichols admittedly could not determine Ma'Leah's manner of death, but concluded that her injuries were not consistent with a simple fall from her bed. ([17] at 197). Instead, Ma'Leah's injuries had to be caused by an “accelerated fall or fall from greater height (actively pushed or hurled vs. fall from furniture, dresser top, while jumping).” ([17] at 197). In his supplement, Dr. Nichols further explained that there are two possibilities-an accelerated fall from height or Ma'Leah was pushed or hurled down to the floor by another person-but he could not determine which happened. ([17] at 198).
Dr. Nichols ruled out crushing from an adult lying on Ma'Leah and a fall from Ma'Leah's bed, but left open the possibility that she fell from her chest of drawers. ([17] at 198). He also specifically presented someone hurling Ma'Leah to the floor as a possible cause of her death. ([17] at 198).
Thus, Dr. Nichols presented possible causes of Ma'Leah's injuries. The record reveals that counsel's trial strategy was to do just that, but while Dr. Nichols only presented two possibilities, one being favorable to Petitioner and the other damning, counsel focused on many possibilities that did not involve someone hurling Ma'Leah to the floor.
Prior to her death, Ma'Leah and the other children spent time at the home of Dena Lohman. Counsel questioned Petitioner's wife, Amanda Proulx, about the children's activities at the Lohman home and elicited testimony that the children had access to a trampoline and an ATV. ([13-8] at 13-19). Counsel confirmed this during his questioning of other witnesses, including Lohman and Ma'Leah's brother, Jalen Lewis. ([13-8] at 145-46; 136-10 at 39-40). Counsel also elicited testimony from Proulx that Ma'Leah jumped on her bed and that the other children would spin Ma'Leah in a circle while holding either her hands or feet. ([13-8] at 22-23).
Counsel established that Ma'Leah stayed with Kay Dawson on certain days each week, and he questioned Proulx about injuries Ma'Leah suffered to her hand and finger while under Dawson's care. ([13-8] at 26). Additionally, counsel questioned Proulx about the fact that Ma'Leah fell down a set of stairs a few weeks prior to her death. ([13-10] at 14-17).
Petitioner argues that his counsel ignored evidence of a dresser in Michaela's room. ([6] at 27). The record belies this argument. Counsel specifically questioned Proulx about an occasion when she found Ma'Leah sitting on top of the dresser. He questioned her about the shape of the dresser, its location in the room, and Ma'Leah's location on top of the dresser. ([138] at 15-18). He also offered a photograph of the dresser into evidence. ([13-8] at 19-20).
During his cross-examination of Dr. Jamie Jackson, one of the physicians who treated Ma'Leah at the Children's Hospital in New Orleans, counsel elicited testimony that “trampolines and four-wheelers are commonly the most likely reason for children to present at emergency rooms due to injuries” and that no one informed her that Ma'Leah had been on a trampoline. ([13-9] at 58-60). Counsel also established with Dr. Jackson that the injuries to Ma'Leah's leg and foot were consistent with a fall from her bed. ([13-9] at 53-55). Additionally, counsel established that Dr. Jackson could not date the injuries to Ma'Leah's back and eyes. ([13-9] at 47-51; 56).
Counsel questioned Dr. Jackson about crush injuries and the recommendation from the American Academy of Pediatrics that children not co-sleep with parents. ([13-9] at 45-46). Petitioner criticizes counsel for pursuing a theory that Petitioner may have rolled on top of Ma'Leah while they slept because it is inconsistent with Petitioner's testimony that he found Ma'Leah next to her bed. ([6] at 25). The record, however, reveals that counsel's trial strategy was to point out many alternative causes of Ma'Leah's injuries, which appears to be at least as sound a strategy as presenting Dr. Nichols's options of an accelerated fall or someone hurling Ma'Leah to the floor.
Petitioner also argues that trial counsel failed to utilize an expert to assist in crossexamining his stepdaughter, Michaela Walker. Michaela testified that after her mother left for work on the night in question, Petitioner was the only adult at home with the children. ([13-8] at 48-49). According to Michaela, she was bathing when a loud noise, like “thunder,” came from the living room. ([13-8] at 39). After her bath, Michaela went to her brother Jalen's room and heard slapping noises. ([13-8] at 39-40). She investigated and found only Petitioner and a crying Ma'Leah in the living room. ([13-8] at 40-41). Michaela's arrival prompted Petitioner to proclaim: “I didn't touch her.” ([13-8] at 41).
Michaela went back to Jalen's room but returned later to take Ma'Leah to bed. She picked Ma'Leah up and noticed a “knot” on her head. ([13-8] at 42). After lying Ma'Leah down, Michaela went to Jalen's room and fell asleep. ([13-8] at 43). Heavy footsteps awoke Michaela, and in the shadows, she saw Petitioner pick Ma'Leah up and “toss” her onto the bed twice. ([138] at 44-45). Michaela again fell asleep and was awakened by strangers around 3:00 a.m. questioning her and informing her that Ma'Leah had been hurt. ([13-8] at 47).
Petitioner argues that an expert could have shown reasons to believe that Michaela's testimony was fabricated. Petitioner submitted an affidavit from a psychiatrist, Dr. Mark Webb. ([6-21]). Dr. Webb noted that Michaela gave four interviews and her account of the events in question differed significantly in each. ([6-21] at 1). He also noted that Michaela “became resentful when Ma'Leah came to live with them; she felt like she was given less attention than her siblings.” ([6-21] at 1). He concluded: “It is my opinion to a degree of reasonable psychiatric certainty that with the behavior of Michaela Walker as recounted in the interviews as part of the investigation, her diagnosis of ADHD [attention deficit hyperactivity disorder] that these symptoms affected the ability to recount accurately any events of the death of Ma'Leah.” ([6-21] at 2).
Once again, however, Petitioner's submissions do not demonstrate that Dr. Webb was available to testify and would have done so, which are required to prevail on this claim. And, Petitioner has not shown a reasonably probability that but for counsel's failure to call Dr. Webb, the jury would not have convicted him.
At trial, counsel specially attacked the credibility of Michaela's testimony. During crossexamination, counsel impeached Michaela with her prior inconsistent statements. He questioned Michaela about her statement to a social worker that she did not see any blood or marks on Ma'Leah on the night in question and her statement to another individual that she did not notice anything unusual about Ma'Leah when carrying her to bed that night. ([13-8] at 51-54). He questioned Michaela about her statement to a psychologist that Petitioner “was running around looking for what caused the noise.” ([13-8] at 57). He challenged Michaela's assertions that her memory was better at the time of the trial than it was years earlier when she made her prior statements. ([13-8] at 53; 59). He asked her the following: “Are you remembering today what you have personal knowledge of or . . . have you kind of pieced it together from what other people have told you?” ([13-8] at 59-60).
Counsel also questioned Michaela about her relationship with Petitioner. Michaela answered “I don't know” when questioned whether she had a “good relationship” with Petitioner. ([13-8] at 61). Counsel questioned her about a text message she sent Petitioner when she was upset with him and asked whether Petitioner showed Ma'Leah extra attention. ([13-8] at 70-71).
Counsel called as a witness Michaela's half-brother, Jalen Lewis, whose testimony contradicted Michaela's. Jalen testified that on the night in question, he and Michaela were in his room when they heard a “loud boom,” and upon hearing the noise, he ran to Michaela's room where he found Ma'Leah on the floor. ([13-10] at 40-41). According to Jalen, he witnessed Petitioner run from the living room to Michaela's room. ([13-8] at 41).
Additionally, Petitioner himself testified that he heard a “boom boom” and upon investigation found Ma'Leah lying on the floor with her foot stuck inside of her bed. ([13-10] at 84). Petitioner also testified that Michaela was “a compulsive liar” and that she was jealous of Ma'Leah. ([13-10] at 91; 96). The record reveals that trial counsel elicited testimony concerning the very issue addressed by Dr. Webb-Michaela's credibility.
Taint Hearing
Petitioner argues that trial counsel was ineffective because he failed to request a hearing to determine whether Michaela should have been allowed to testify. According to Petitioner, a “taint hearing” was necessary to determine whether Michaela's testimony had been improperly influenced and was, therefore, trustworthy. Petitioner submitted an affidavit from a psychologist, Dr. Julie Teater, who stated that Michaela “was given information from multiple people and she seems to have incorporated information provided by them into her memory/narrative of events.” ([17] at 300). Dr. Teater concluded that Michaela's “reporting of the night her sister was injured does not appear to be reliable.” ([17] at 300).
“A failure by counsel to file motions does not per se constitute ineffective assistance of counsel.” Thompson v. Johnson, 7 F.Supp.2d 848, 869 (S.D. Tex. 1998) (citing Kimmelman v. Morrison, 477 U.S. 365, 383-84 (1986)). A determination of ineffectiveness depends on whether the motion would have been granted if made. See United States v. Oakley, 827 F.2d 1023, 1025 (5th Cir. 1987). The decision to file pre-trial motions “falls squarely within the ambit of trial strategy” and is entitled to the presumption that it was strategic. Schwander v. Blackburn, 750 F.2d 494, 500 (5th Cir. 1985). Counsel is not ineffective by failing to advance a meritless argument. Parr v. Quarterman, 472 F.3d 245, 256 (5th Cir. 2006).
Additionally, a petitioner must show that counsel's inaction prejudiced his defense. Strickland, 466 U.S. at 687. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Actual prejudice requires “a reasonable probability that the verdict would have been different” absent counsel's alleged failure. Kimmelman, 477 U.S. 375.
Petitioner's argument that trial counsel was ineffective by not seeking a taint hearing is based on the New Jersey Supreme Court's decision in State v. Michaels, 642 A.2d 1372 (1994). In Michaels, a nursery-school teacher had been “convicted of bizarre acts of sexual abuse against many of the children who had been entrusted to her care.” Id. at 1374. A New Jersey appellate court reversed the conviction and ordered that “if the State decided to retry the case, a pretrial hearing would be necessary to determine whether the statements and testimony of the child-sexabuse victims must be excluded because improper questioning by State investigators had irremediably compromised the reliability of that testimonial evidence.” Id. The New Jersey Supreme Court affirmed.
The New Jersey Supreme Court, however, acknowledged that this procedure was “somewhat extraordinary.” Id. at 1380-81. Indeed, “[t]he majority of jurisdictions that have considered the issue have rejected the Michaels approach on the ground that existing procedures that address the competency and credibility of witnesses are adequate to deal with concerns regarding child testimony.” Reece v. State, 103 A.3d 1076, (Md.App. (2014) (internal quotations and citation omitted); see also Ardolino v. Warden, 223 F.Supp.2d 215, 238 (D. Me. 2002) (collecting cases).
“We acknowledge that although reliability assessments with respect to the admissibility of out-of-court statements are commonplace, . . . assessing reliability as a predicate to the admission of in-court testimony is a somewhat extraordinary step.” Id. at 1380-81.
Here, Petitioner has not shown that a “taint hearing” was required or even available under Mississippi law. Nor has he shown that such a hearing was required as a federal constitutional due process right. Counsel was not ineffective for failing to move for such an extraordinary hearing. See Ardolino, 223 F.Supp.2d at 239 (“Counsel does not render ineffective assistance for failing to make (or think of making) a cutting-edge legal argument with dim prospects of success.”); Kennedy v. Cain, 2012 WL 9338152, at *40 (E.D. La. Sept. 19, 2012).
Additionally, Michaela's testimony did not go unchallenged. As previously discussed, trial counsel specifically and thoroughly attacked the credibility of Michaela's testimony by, inter alia, using her prior inconsistent statements for impeachment. See supra p. 15.
Dr. Jamie Jackson's Testimony
Dr. Jamie Jackson treated Ma'Leah at the Children's Hospital in New Orleans and testified at Petitioner's trial. Petitioner argues that his trial counsel was ineffective because he failed to identify the flaws in Dr. Jackson's testimony and to argue for its exclusion. Petitioner also faults counsel for not challenging Dr. Jackson's qualifications. Petitioner, however, has failed to establish that counsel had any valid basis to challenge Dr. Jackson's qualification or that he suffered any prejudice by counsel's failure to do so.
Dr. Jackson testified that she is a board-certified pediatrician and has extensive training in forensic pediatric medicine/child abuse pediatrics. ([13-8] at 151). She has examined thousands of children, and each year, she examines between 350 and 500 children for suspected abuse. ([13-9] at 3-4). According to Dr. Jackson, she had testified as an expert more than sixty times. ([13-9] at 4). Trial counsel questioned Dr. Jackson about her experience in treating lifethreatening falls and head trauma, but the record does not establish that he was ineffective for electing to not challenge Dr. Jackson's qualifications to testify. ([13-9] at 5-6).
Turning to exclusion, Petitioner argues that trial counsel was ineffective because he failed to have Dr. Jackson's testimony excluded due to faulty methodology. According to Petitioner, Dr. Jackson's conclusion that Ma'Leah's injuries resulted from abuse was “based on an assumption by the family of a fall from the bed, since there were no witnesses to what happened, and older injuries to the child.” ([6] at 45). Petitioner asserts that Dr. Jackson did not consider alternative, accidental causes for Ma'Leah's injuries and that trial counsel failed to crossexamine Dr. Jackson concerning alternative causes.
Petitioner mischaracterizes Dr. Jackson's testimony. Dr. Jackson did not simply base her testimony on old injuries and the family's assumption that Ma'Leah fell from her bed. According to Dr. Jackson, she spoke to individuals, including Petitioner, Ma'Leah's mother and stepmother, Jalen, and Michaela, to determine what caused the injuries to Ma'Leah. ([13-9] at 10-11; 36). Petitioner told Dr. Jackson that he found an unresponsive Ma'Leah lying next to her bed with her foot stuck in the bed. ([13-9] at 10). However, neither Petitioner nor the other witnesses identified any major accidents, significant falls, or other traumas which could have caused Ma'Leah's injuries. ([13-9] at 11).
Dr. Jackson testified that a simple, single incident could not have caused the number and types of injuries suffered by Ma'Leah. She noted the extensive bruising over much of Ma'Leah's body, the fracturing of three different bones in Ma'Leah's skull, and the retinal hemorrhages. ([13-9] at 15; 17; 23-24). According to Dr. Jackson, retinal hemorrhaging like that suffered by Ma'Leah is almost exclusively seen in cases of abusive head trauma, with exceptions seen in cases involving automobile collisions and falls from great heights-three stories or more. ([13-9] at 23-24).
Contrary to Petitioner's assertions, trial counsel specifically questioned Dr. Jackson about the possibility of an accidental injury. He elicited testimony from Dr. Jackson that she had not been informed that Ma'Leah had been on a trampoline and elicited testimony that trampolines are one of the most likely causes of injuries to children. ([13-9] at 58-60). During cross- examination, counsel also established that the injuries to Ma'Leah's leg and foot were consistent with a fall from her bed and that Dr. Jackson could not date the injuries to Ma'Leah's back and eyes. ([13-9] at 47-51; 53-55; 56).
Petitioner also argues that his trial counsel was ineffective because he allowed Dr. Jackson to improperly comment on Michaela's credibility. ([6] at 47). Petitioner does not identify which parts of Dr. Jackson's testimony he believes are improper comments on Michaela's credibility, and the record does not reveal any such improper testimony. Dr. Jackson testified that she interviewed Michaela near the time of Ma'Leah's injuries. ([13-9] at 36; 62). According to Dr. Jackson, Michaela did not indicate that Petitioner abused Ma'Leah. ([13-9] at 62). Dr. Jackson also testified that the statements from Michaela and Jalen conflicted. ([13-9] at 62). Upon Dr. Jackson's questioning, Michaela denied that anyone instructed her on what to say about the night at issue. ([13-9] at 64). Petitioner has not shown that Dr. Jackson made any improper comments about Michaela's credibility or that trial counsel was ineffective in handling Dr. Jackson's testimony.
Youth Court Testimony
Petitioner argues that his trial counsel was ineffective during his cross examinations of the State's expert witnesses, specifically Dr. Jackson and Dr. Edward Byrnes, because he failed to utilize their testimony from a prior youth court proceeding. According to Petitioner, the youth-court testimony contradicted the trial testimony, but counsel refused to use the transcript from the youth court proceeding because he believed such proceedings were confidential.
Petitioner, however, has failed point to any meaningful contradictions or show the requisite deficient performance or prejudice necessary to sustain an ineffective-assistance-of-counsel claim. Petitioner argues that Dr. Jackson's youth court testimony was based on flawed methodology, that Dr. Jackson improperly ruled out alternative causes for Ma'Leah's injuries based on family members' assumptions that Ma'Leah had fallen from her bed, and that Dr. Jackson failed to consider the possibility of an accident.
Petitioner attacks Dr. Jackson's trial testimony for the same reasons. He argues: “At trial, Dr. Jackson testified on direct examination that her conclusion was based on the fact that she heard [no] account of any type of high velocity injury. She based her conclusion on what she was told about a fall from a bed. She was never presented with any evidence or apparently considered any possibility other than abuse.” ([6] at 43). Petitioner has failed to show that his counsel's performance was deficient because he did not impeach Dr. Jackson with his youth court testimony.
As for Dr. Byrnes, an emergency medicine physician who treated Ma'Leah at Hancock Medical Center, Petitioner notes portions of his youth court testimony concerning the timing of Ma'Leah's injuries. Petitioner argues that during the youth court proceeding, Dr. Byrnes testified that Ma'Leah's injuries were “more consistent with trauma that happened up to a day before” her arrival at the hospital. ([6] at 44). Such testimony would support the theory that Ma'Leah's injuries occurred before the evening of August 25, 2013, when Petitioner was the lone adult responsible for her care. But, Petitioner mischaracterizes Dr. Byrnes's testimony.
Dr. Byrnes testified that Ma'Leah arrived at the hospital at 11:33 p.m., and he was told that she had fallen from her bed half an hour earlier. ([6-17] at 15; 21-23). Dr. Byrnes believed the injuries were inconsistent with both the given “mechanism” (a fall from her bed) and the given time frame (half an hour before). ([6-17] at 24). He stated: “Accidents happen, but to fall off . . . the bed and sustain these injuries is inconsistent with any mechanism that I can come up with.” ([6-17] at 24).
Dr. Byrnes explained that among the injuries was a subdural hematoma or brain bleed. ([6-17] at 39). Concerning the timing of this injury, he testified as follows:
Q: Do you know how long that had been going on?
A: No. See . . . I really couldn't say, but it-it doesn't seem-in my experience, it doesn't seem consistent with a six millimeter subdural hematoma that was from trauma that was received in less than a half an hour.
Q: Okay. So that would be more consistent with trauma that had happened up to a day before?
A: Yeah. Honestly, I couldn't really give you a specific time frame, other than the fact that acute meaning within a half hour wouldn't be one of them. ...
Q: So this injury, I guess in your degree of medical experience and expertise, could have possibly occurred a day or two before?
A: I really couldn't-I couldn't say. It would have been later than 20, 30 minutes.([6-17] at 39-40).
Dr. Byrnes ruled out Ma'Leah's subdural hematoma occurring within thirty minutes of her arrival at the hospital. On the night in question, Petitioner's then-wife, Amanda Proulx, left for work around 6:15 p.m., and Ma'Leah did not arrive at the hospital until 11:30 p.m. ([13-7] at 149-50). Thus, Dr. Byrnes's testimony provides a timeframe for the subdural hematoma which includes many hours during which Ma'Leah was in Petitioner's sole care.
Petitioner does not point to any portion of Dr. Byrnes's trial testimony which contradicts this. During the trial, Dr. Byrnes discussed the timing of Ma'Leah's injuries, but in relation to her level of consciousness. He testified as follows:
Q: And as far as dating or timing this particular injury from going back from the time when you saw it, are you capable to tell how long this injury occurred before the child got to the emergency room?
A: It was very acute. I mean, . . . I can't say exactly when it happened, but in this case with a child such as the injuries that were sustained and the way she presented as far as how reactive she was, it had to be very acute.
Q: Very acute, is that what you said?
A: Well, acute, yeah.([13-8] at 92-93). This testimony does not contradict Dr. Byrnes's youth court testimony. Indeed, during the youth court proceeding, he testified that an adult caretaker would have noticed a “change in the way that the child carried itself” immediately following the injuries. ([6-17] at 52).
None of Petitioner's arguments in support of his ineffective-assistance-of-counsel claim merit habeas relief. Petitioner has failed to overcome the “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. More importantly, Petitioner has failed to establish that the Mississippi Court of Appeals's rejection of Petitioner's ineffective assistance of counsel claim was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States. Therefore, Petitioner is not entitled to habeas relief on this ground.
Ground 3: Batson Violation
In Ground 3, Petitioner argues that the State systematically struck potential black jurors in violation of Batson v. Kentucky, 476 U.S. 79 (1986). This claim, argues Respondent, is barred from federal habeas review pursuant to the procedural-default doctrine. Pursuant to this doctrine, federal courts are precluded from reviewing an individual's habeas claim where the state court declined to address the claim for failure to meet a state procedural requirement. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).
Petitioner did not raise the issue of a Batson violation on direct appeal, but raised it in his PCR motion before the Mississippi Supreme Court. In its order denying this motion, the supreme court-citing Miss. Code Ann. § 99-39-21(1) -held that “because the alleged Batson violation was raised at trial and capable of determination on direct appeal but not asserted, we find that his Batson claim is waived.” ([17-1] at 15). The supreme court also held: “Notwithstanding the waiver bar, Lewis does not present a substantial showing that a Batson violation occurred.” ([17-1] at 15).
§ 99-39-21(1) provides: “Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.”
A federal court “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman, 501 U.S. at 729-30. To satisfy the “independent” and “adequate” requirements, the state court's dismissal must clearly and expressly reflect that it rests on a state procedural bar, and the bar must be strictly or regularly applied by the state courts to the vast majority of similar claims. Martin v. Maxey, 98 F.3d 844, 847 (5th Cir. 1996). “A state court expressly and unambiguously bases its denial of relief on a state procedural default even if it alternatively reaches the merits of a defendant's claim.” Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999).
A state has failed to strictly and regularly apply a procedural rule only when the state “clearly and unequivocally excuse[s] the procedural default,” and when the state fails to apply the rule to claims “identical or similar” to the petitioner's claim. Amos v. Scott, 61 F.3d 333, 339 (5th Cir. 1995). Petitioner bears the burden of establishing that the State did not strictly or regularly follow a procedural bar. Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997).
Petitioner argues that his Batson claim is not procedurally barred in this Court because “Mississippi has long had an exception to procedural bars where the claim involves a ‘fundamental right.'” ([6] at 13). Citing Flowers v. Mississippi, 947 So.2d 910 (Miss. 2007), Petitioner asserts that the “right to an unbiased jury is a fundamental right and as such overrides procedural default.” ([23] at 12). In Flowers, the Mississippi Supreme Court held that application of a procedural bar was warranted based on defense counsel's failure to present an issue to the trial judge but further held as follows:
Procedural bar notwithstanding, we address the merits of this issue. Because the error in upholding the strike of [the juror] affects a substantial right, we apply the plain error rule to find that a Batson violation occurred. Williams v. State, 794 So.2d 181, 187 (Miss. 2001) (recognizing that plain error rule will be applied where defendant failed to make contemporaneous objection and defendant's substantive/fundamental rights are affected).Flowers, 947 So.2d at 927.
Petitioner's reference to a single case, however, may be insufficient to meet his burden of establishing that the State did not strictly or regularly follow the subject procedural bar. This Court has previously held that “a showing that the state court disregarded a procedural rule in two cases is an insufficient basis for an exception to the procedural default rule.” Davis v. Mississippi, 2018 WL 5941058, at *2 (S.D.Miss. June 13, 2018). “Rather, in order to establish that a rule relied upon by a state court was inadequate, a petitioner must show that the rule has not been ‘strictly or regularly applied evenhandedly to the vast majority of similar claims.'” Id. (quoting Amos, 61 F.3d at 339).
The Fifth Circuit has previously determined that § 99-39-1(1) is an independent state procedural bar. See Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997); Johnson v. Puckett, 176 F.3d 809, 823-24 (5th Cir. 1999). Additionally, on January 26, 2023, the Mississippi Supreme Court overruled precedent applying “the judicially crafted fundamental-rights exceptions” to “the substantive, constitutional bars codified by the Legislature in the Uniform Post-Conviction Collateral Relief Act”-Miss. Code Ann. §§ 99-39-1 to 29. Howell v. State, 358 So.3d 613 (Miss. 2023).
Nevertheless, this Court need not decide whether Mississippi strictly or regularly followed the procedural bar at issue because a review of the merits reveals that Petitioner is not entitled to relief based on his claim of a Batson violation. As previously noted, the Mississippi Supreme Court alternatively ruled that Petitioner failed to make a showing that a Batson violation had occurred, and Petitioner has not demonstrated that the state court's decision on this issue is contrary to, or involves an unreasonable application of, clearly established federal law, or that the decision was based on an unreasonable determination of the facts in light of the evidence.
The Respondent did not address the merits of Petitioner's Batson claim in his initial Response [12], but on January 6, 2023, the Court directed the Respondent to file a supplemental response addressing the merits. The Respondent filed his Supplemental Response [34] on January 27, 2023, and Petitioner filed a Reply [37] on March 6, 2023.
Batson prohibits purposeful racial discrimination by the prosecution in selecting a jury. “Although the burden of persuading the court that a peremptory strike was based on race always rests with the party claiming such discrimination . . ., courts can assess a Batson claim by shifting the burden of producing evidence in a three-step process.” Seals v. Vannoy, 1 F.4th 362, 368 (5th Cir. 2021). First, the challenger must, by the “totality of the relevant facts,” make a prima facie showing that a strike was racially motivated. Batson, 476 U.S. at 95. A prima facie showing may be supported by a party's pattern of strikes, statements during voir dire and when exercising a strike, and other relevant circumstances which raise an inference that a party exercised its strikes in a racially discriminatory manner. Id. at 96-97.
Second, if a prima facie case is made, the burden shifts to the party accused of racial discrimination to articulate a race-neutral reason for the strike. Id. at 97. The given reason is deemed to be race-neutral unless a discriminatory intent is inherent in the explanation. Hernandez v. New York, 500 U.S. 352, 360 (1991). Third, if a race-neutral reason is given, the challenger “has the opportunity to show that the stated reason is pretextual.” Seals, 1 4th at 368. The trial court then determines whether the challenger has sustained his overall burden of proving purposeful discrimination. Id. A trial court's decision on the absence of purposeful discrimination is a “pure issue of fact.” Hernandez, 500 U.S. at 364.
Petitioner argues that the State targeted black jurors with cause challenges and peremptory strikes. The records reveals that the prosecution challenged for cause the following potential jurors: 14, 15, 24, 25, 27, and 36. The record reveals that these challenges were proper. Juror 14 said she felt Petitioner “is innocent.” ([13-6] at 71). Juror 15 said she could not find Petitioner guilty. ([13-6] at 75). Juror 24 said “I really don't think he is capable of doing what he's accused of.” ([13-6] at 126). Juror 25 said he had already made up his mind. ([13-7] at 27). Juror 27 is Petitioner's cousin and said she could not be fair and impartial. ([13-6] at 77-78). Finally, Juror 36 said she was in excruciating pain. ([13-7] at 36). Petitioner did not object to the dismissal of any of these potential jurors, and the trial court dismissed all of them for cause. ([137] at 35-36).
The trial court then moved on to peremptory strikes, and the prosecution used its ninth peremptory strike on Juror 38, Orealia Marshall. ([13-7] at 45). Defense counsel raised a Batson challenge by stating:
Judge, we'll point out, that's only the second black we've reached on the venire. They did accept Astrid Alcantar, but, of course, we have so many of the blacks that were struck for cause. This is only the second black we've reached, so they're batting 50 percent of striking blacks and we would request the State provide a race neutral reason for Mrs. Marshall.([13-7] at 45). The trial court did not require the prosecution to provide a race-neutral reason for the strike, stating: “There's no pattern yet.” ([13-7] at 45).
After the jury was selected, defense counsel informed the court that his client believed Juror 35, Astrid Alcanter, was white. Defense counsel had thought Ms. Alcanter was black but stated she “may be Hispanic because I see now she was born in Texas,” which elicited the following response from the prosecution: “They've got black people in Texas.” ([13-7] at 48). The trial court noted that it “thought she was black,” but held that even if she were not black, there was no pattern as the prosecution had only struck a single black juror. ([13-7] at 49).
After the court excused the jury for the day, defense counsel again challenged the prosecution's use of a peremptory strike on Marshall. The court then asked the prosecution the following: “In an abundance of caution, what was the reason you struck her? Can you give us a race neutral reason?” ([13-7] at 52). The prosecution responded that Marshall knew the Lewis family. ([13-7] at 53). With that answer, the court recessed.
Following the guilty verdict, Petitioner filed a motion for new trial arguing, in part, that the court erred by allowing the prosecution to strike Marshall. ([13-3] at 123-30). Petitioner argued that the prosecution's stated reason for striking Marshall-that she knew Petitioner's family-was pretextual. Petitioner asserted that the prosecution did not strike two white Jurors (Jurors 22 and 33) who also knew some of Petitioner's family.
During voir dire, Juror 22 stated: “I think I know Jack Lewis. There was a person who graduated in my class.” Juror 22 also stated that she would be impartial. ([13-6] at 117). Juror 33 stated that she is related to Petitioner's wife, Amanda Proulx, but also stated that she had not seen or talked to Proulx in approximately twenty years and would be impartial. ([13-6] at 79-82).
During argument, the prosecution noted the remote nature of these relationships and stated that neither was “a substantial relationship of concern.” ([13-11] at 75-76). On the other hand, the prosecution stated that it was concerned that Marshall knew the “Lewis family,” pointing out that most of Petitioner's witnesses were family members, including his mother and sister. ([13-11] at 76-77). Indeed, during voir dire, Marshall stated: “I know the Lewises.” ([136] at 118). The trial court concluded “[t]here has not been a pattern” and that “it was not a Batson challenge, and [the prosecution] . . . didn't have to give a reason.” ([13-11] at 89).
Where, as here, the State “tender[ed] a race-neutral explanation,” the question of the Petitioner's prima facie case is moot, and this Court's review begins at step two of the Batson analysis, the articulation of a race-neutral reason for the strike. See United States v. Williams, 264 F.3d 561, 571 (5th Cir. 2001). At this step, courts do “not demand an explanation that is persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765, 767 (1995). The issue is whether the explanation is facially valid, and the given reason is deemed to be race-neutral unless a discriminatory intent is inherent in the explanation. Hernandez, 500 U.S. at 360. The prosecution's explanation for the strike-that Marshall knew the Lewis family-was facially valid and not inherently discriminatory.
At the third step, the issue is whether the defendant has shown purposeful discrimination on the part of the prosecution. To meet their burden of demonstrating purposeful discrimination, criminal defendants may “present a variety of evidence to support a claim that a prosecutor's peremptory strikes were made on the basis of race.” Flowers v. Mississippi, 139 S.Ct. 2228, 2243 (2019).
For example, defendants may present:
• statistical evidence about the prosecutor's use of peremptory strikes against black prospective jurors as compared to white prospective jurors in the case;
• evidence of a prosecutor's disparate questioning and investigation of black and white prospective jurors in the case;
• side-by-side comparisons of black prospective jurors who were struck and white prospective jurors who were not struck in the case;
• a prosecutor's misrepresentations of the record when defending the strikes during the Batson hearing;
• relevant history of the State's peremptory strikes in past cases; or
• other relevant circumstances that bear upon the issue of racial discrimination. Id.
“This ultimate conclusion of discriminatory intent is a finding of fact.” Ladd v. Cockrell, 311 F.3d 349, 356 (5th Cir. 2002) (citing Hernandez, 500 U.S. at 363). The role of a federal court considering a Batson claim is to determine whether the state court's factual finding was unreasonable in light of the evidence. See 28 U.S.C. § 2254(d)(2); Miller-El, 545 U.S. at 240. The federal court is to presume the state court's findings were correct, and that presumption, applicable to state trial and appellate courts, can be rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El, 545 U.S. at 240; Sumner, 455 U.S. at 593. As previously mentioned, the Mississippi Supreme Court held that Petitioner did “not present a substantial showing that a Batson violation occurred.” ([17-1] at 15). This holding is entitled to AEDPA deference even though it was under alternative procedural and merits grounds. See Woodfox v. Cain, 609 F.3d 774, 795 n.7 (5th Cir. 2010) (“When a state court rules alternatively on both procedural grounds and on the merits of a prisoner's claims, the AEDPA deference is still applicable.”).
Here, the prosecution struck only one black juror with a peremptory challenge, and while the racially discriminatory striking of a single minority can violate Batson, Petitioner “must prove discrimination by more than the sole fact that the minority venire-person was struck by peremptory challenge.” United States v. Branch, 989 F.2d 752, 755 (5th Cir. 1993). Petitioner frames the striking of Marshall as the striking of 100% of the black jurors. Courts, however, have noted that a low number of potential black jurors can render statistics unhelpful. See United States v. Petras, 879 F.3d 155, 162 (5th Cir. 2018) (“Defendants first note that the prosecution struck 100% of the potential black jurors-both of the two eligible jurors who were black. Yet given the low number of black jurors in the first place, that statistic is unhelpful.”).
Petitioner complains that black jurors were dismissed for cause, but the records reveals that the prosecution challenged for-cause five potential jurors who admitted they would not be fair and one juror who was in excruciating pain. Petitioner did not object to the dismissal of any of these jurors. ([13-7] at 35-36). The for-cause challenges-which were justified-do not show purposeful discrimination on the part of the prosecution.
The undersigned notes that the for-cause challenges were not subject to a Batson challenge. See United States v. Elliott, 89 F.3d 1360, 1365 (8th Cir. 1996) (“We know of no case that has extrapolated the Batson framework to for-cause strikes.”); United States v. Blackman, 66 F.3d 1572, 1575 n.3 (11th Cir. 1995) (“no authority suggests Batson extends to the area of challenges for cause”); United States v. DeJesus, 347 F.3d 500, 506 (3d Cir. 2003); United States v. Bergodere, 40 F.3d 512, 515-16 (1st Cir. 1994).
Petitioner asserts that the prosecution and trial court falsely maintained that Astrid Alcanter, who was not stricken, was black. The record, however, does not support this assertion. The prosecution, trial court, and defense counsel all initially thought Alcanter was black. But, after Petitioner claimed she was white, the prosecution admitted that it did not know her race, and the trial court held that, even if she were not black, there was no pattern as the prosecution had only struck a single black juror. ([13-7] at 49).
Turning to Orealia Marshall, the record shows that the prosecution used eight peremptory strikes on non-black jurors before using its ninth strike on her. When called upon, the prosecution provided legitimate reasons for striking Marshall and was able to distinguish her from two specific white jurors identified by Petitioner as comparators. ([13-11] at 75-77).
Petitioner also asserts that there is a recent history of the prosecution improperly using peremptory strikes and that the prosecution used racially disparate questioning and investigation in his case, but he provides no support for these bare assertions. ([6] at 58). Petitioner does not limit his accusations of racism to the prosecution. He also asserts that there is pervasive racism among the entire citizenry of the Mississippi Gulf Coast. In support of this assertion, he submits an undated newspaper article about a single incident, an allegedly racist doll which was handed out during a Mardi Gras parade. ([6-24]; [17] at 348-50). This certainly does not demonstrate purposeful discrimination on the part of the prosecution.
Petitioner has failed to show that the Mississippi Supreme Court was unreasonable in holding there was no Batson violation. Habeas relief on this claim should be denied.
Ground 4: Spoliation, Brady Violation, and Newly Discovered Evidence
Spoliation
Dr. Paul McGarry preformed an autopsy on Ma'Leah and produced a report dated August 28, 2013. ([13-2] at 127-33). In the report, Dr. McGarry indicated that “[b]lood, urine, gastric contents, vitreous fluid, tissue samples, and oral swab, and fingernail scrapings are saved.” ([132] at 133). Petitioner asserts that he requested the tissue samples but was informed that none were available. Prior to trial, Petitioner filed a motion to dismiss based on spoliation of the tissue samples, which the trial court denied. ([13-2] at 124-26). Here, he argues that the spoliation of this evidence violated his due process rights.
The government violates a defendant's right to due process when: (1) it destroys evidence whose exculpatory significance is “apparent before” destruction and (2) the defendant remains unable to “obtain comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479, 489 (1984). Furthermore, if the exculpatory value of the evidence is undetermined, but may be “potentially useful” to the defense, then a defendant must show that the government acted with bad faith in destroying the evidence. Arizona v. Youngblood, 488 U.S. 51, 58 (1988). The destruction of potentially useful evidence does not violate due process “unless a criminal defendant can show bad faith on the part of the police.” Illinois v. Fisher, 540 U.S. 544, 547-48 (2004).
The Mississippi Court of Appeals addressed this issue in its written opinion, setting forth the following standard: “Lewis must show: (1) the evidence in question possessed a significant, exculpatory value that was apparent before it was destroyed or lost; (2) Lewis had no possible means by which to obtain comparable evidence; and (3) the State destroyed or failed to preserve the evidence in bad faith.” Lewis, 295 So.3d at 535.
Petitioner also raised this claim in his PCR motion to the supreme court, but the court held that the claim was barred by the doctrine of res judicata. ([17-1] at 15).
As to the exculpatory value of the evidence, Petitioner argues that the tissue samples were “critical evidence needed for the defense” because his expert wanted to test the tissue samples to determine when Ma'Leah's injuries occurred. ([6] at 59). Petitioner submitted an affidavit from a pathologist, Dr. James Lauridson, stating: “Examination of the destroyed tissue could have provided a basis for an informed opinion as to timing of the injury.” ([13-2] at 135).
The court of appeals considered Dr. Lauridson's affidavit but also considered an affidavit from Mississippi's Chief Medical Examiner, Dr. Mark LeVaughn, who stated that “[t]issue samples . . . were not necessary or helpful to determine the time of injury, or the cause or manner of death in this case.” Lewis, 295 So.3d at 535; ([13-3] at 12). Dr. LeVaughn testified at trial that using tissue samples to determine the time of an injury is “extremely risky as a pathologist . . . [a]nd difficult, if not impossible, to do.” Id. at 535-36; ([13-9] at 137-38).
Additionally, the appeals court considered testimony from Drs. Byrnes, Jackson, and Leon that Ma'Leah would have immediately exhibited symptoms and any supervising adult would have known that she needed medical attention. Id. at 536. The appeals court concluded:
Weighing Dr. Lauridson's testimony against the testimony provided by Drs. LeVaughn, Byrnes, Jackson, and Leon, we find that the tissue samples possessed no significant exculpatory value that would have been apparent before it was lost. The supreme court has recently held that where a defendant provides no clear indication that certain evidence possesses an apparent exculpatory value, the defendant fails to satisfy the first prong of the spoliation test. Robinson v. State, 247 So. 3d. 1212, 1234 (Miss. 2018). In his affidavits, Dr. Lauridson stated that the tissue samples could be potentially useful to examine the time and date of Ma'Leah's injuries. Dr. Lauridson also opined that Dr. McGarry should have retained tissue samples because tissue samples were taken in other autopsies that Dr. McGarry performed. Such conclusions amount to mere speculation.Id.
The appeals court also found “no evidence in the record of bad faith by the State or the police.” Id. As the appeals court observed, the police chief, David Allen, testified about the efforts made to obtain tissue samples after the autopsy. According to Allen, he attended the autopsy and did not observe Dr. McGarry collect a tissue sample. ([13-5] at 112-13). Dr. McGarry provided no tissue samples to Allen or the police department, and Allen testified that he never saw any tissue samples. ([13-5] at 113; 116). Upon learning that tissue samples were potentially missing, Allen contacted Dr. McGarry's office and was informed they had neither tissue samples nor records of any tissue samples. ([13-5] at 115).
Allen further testified that the facility where the autopsy was performed had no tissue samples. ([13-5] at 114). Allen contacted the coroner, Jim Faulk, and had two officers search the coroner's office for tissue samples. The coroner had fingernail shavings, scrapings, blood, and fluid, but no tissue samples. ([13-5] at 114-15). Finally, Allen contacted Reiman's Funeral Home, which possessed no tissue samples. ([13-5] at 115).
The appeals court concluded: “Lewis fails to provide a sufficient showing of bad faith on the part of the State, as well as any significant and apparent exculpatory value of the tissue samples. In fact, the record contains no sufficient evidence that tissue samples existed at all. As such we find no violation of Lewis's due process rights ....” Lewis, 295 So.3d at 537.
Petitioner has failed to demonstrate that the state court's decision on this issue is contrary to, or involves an unreasonable application of, clearly established federal law, or that the decision was based on an unreasonable determination of the facts in light of the evidence. Habeas relief on this issue should be denied.
Brady Violation
Petitioner also argues that the State's failure to provide him the tissue samples mentioned in Dr. McGarry's autopsy report violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963). Under Brady, the prosecution has an affirmative duty to disclose evidence that is favorable to the accused. To prevail on a claim based on Brady, a habeas petitioner must establish: (1) the prosecution suppressed evidence; (2) the evidence was favorable; and (3) the evidence was material either to guilt or punishment. Brady, 373 U.S. at 87. Furthermore, a petitioner must show the alleged favorable evidence was not discoverable through due diligence. United States v. Aubin, 87 F.3d 141, 148-49 (5th Cir. 1996). “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality' in the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109-10 (1976). Whether evidence must be produced and whether it is material under Brady is a mixed question of law and fact. Brown v. Cain, 104 F.3d 744, 750 (5th Cir. 2007).
The Mississippi Supreme Court reviewed the Brady claim raised in Petitioner's PCR motion and found that Petitioner failed to “present a substantial showing that the State violated Brady. See Miss. Code Ann. § 99-39-27(5).” ([17-1] at 15). Petitioner has failed to overcome the deference that must be afforded the state court's findings.
As previously discussed, Petitioner submitted an affidavit from a pathologist, Dr. Lauridson, stating the tissue samples “could have provided a basis for an informed opinion as to timing of the injury.” ([13-2] at 135). However, the Chief Medical Examiner called into question the probative value of the tissue samples; he testified that tissue samples were not necessary or helpful to determine the time of injury. ([13-3] at 12). Moreover, even if the Court were to accept Dr. Lauridson's statement as true, it only establishes the mere possibility that tissue samples might have helped the defense, which “does not establish materiality in the constitutional sense.” Agurs, 427 U.S. at 109-110.
Petitioner has failed to demonstrate that the supreme court's decision on this issue is contrary to, or involves an unreasonable application of, clearly established federal law, or that the decision was based on an unreasonable determination of the facts in light of the evidence. Habeas relief on this issue should be denied.
Newly Discovered Evidence
Petitioner argues that he is entitled to relief based on newly discovered evidence. Petitioner submitted a news article from March 24, 2021, stating that the Office of State Medical Examiner suspended the certification of the Hancock County coroner, Jim Faulk, “based on potential violations, including potential failure to comply with mandatory reporting to Child Protective Services, reporting overdose deaths to the Bureau of Narcotics, potential failure to comply with adequate preservation of evidentiary samples, and potential failure to submit correct documentation as required for child death investigations” ([6-27]).
Petitioner raised this issue in his PCR motion, and the Mississippi Supreme Court found “that the new evidence is insufficient to meet the newly-discovered-evidence standard. See Havard v. State, 86 So.3d 896, 906 (Miss. 2012); Ormond v. State, 599 So.2d 951, 962 (Miss. 1992).” ([9-6]). The standard for reviewing newly-discovered-evidence claims in Mississippi, cited by the supreme court, provides: “Newly discovered evidence warrants a new trial if the evidence will probably produce a different result or verdict; further, the proponent must show that the evidence has been discovered since the trial, that it is material to the issue, and that it is not merely cumulative, or impeaching.” Ormond v. State, 599 So.2d 951, 962 (Miss. 1992).
“[T]he existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” Herrera v. Collins, 506 U.S. 390, 400 (1993); Jacobs v. Scott, 31 F.3d 1319, 1324 (5th Cir. 1994). “This rule is grounded in the principle that federal habeas courts sit to ensure the individuals are not imprisoned in violation of the Constitution-not to correct errors of fact.” Id. The Supreme Court explained that a state court's decision not to hear a newly-discovered-evidence claim will violate due process only where the decision transgresses “a principle of fundamental fairness rooted in the traditions and conscience of our people.” Id. at 411.
Petitioner has failed to make such a showing, particularly in light of the limited value of the new evidence. The coroner did not perform Ma'Leah's autopsy. He did not testify at trial. As explained earlier, he possessed certain evidence such as Ma'Leah's blood and fluid, but did not possess any tissue samples. Petitioner, however, has not shown that the coroner failed to preserve Ma'Leah's tissue samples or that the tissue sample ever existed. Petitioner has likewise failed to show that the tissue samples, if any, had any significant value.
Petitioner has failed to demonstrate that the state court decision on this issue is contrary to, or involves an unreasonable application of, clearly established federal law, or that the decision was based on an unreasonable determination of the facts in light of the evidence. Habeas relief on this issue should be denied.
RECOMMENDATION
For the reasons stated above, the undersigned recommends that the relief sought by Oren Lewis in his Petition for Writ of Habeas Corpus be denied and that the Petition be dismissed with prejudice.
NOTICE OF RIGHT TO OBJECT
In accordance with the rules and 28 U.S.C. § 636(b)(1), any party within fourteen days after being served a copy of this recommendation, may serve and file written objections to the recommendations, with a copy to the judge, the magistrate judge and the opposing party. The District Judge at the time may accept, reject or modify in whole or part, the recommendations of the Magistrate Judge, or may receive further evidence or recommit the matter to this Court with instructions. The parties are hereby notified that failure to file written objections to the proposed findings, conclusions, and recommendations contained within this report and recommendation within fourteen days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the proposed factual findings and legal conclusions accepted by the district court to which the party has not objected. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).