Neal v. Vannoy

Full title: Jarrell NEAL v. Darrel VANNOY, Warden

Court: United States District Court, E.D. Louisiana.

Date published: May 20, 2022

603 F. Supp. 3d 310 (E.D. La. 2022)

Opinion

CIVIL ACTION CASE NO. 15-5390

2022-05-20

Jarrell NEAL v. Darrel VANNOY, Warden

Cecelia Trenticosta Kappel, The Capital Appeals Project, New Orleans, LA, Rachel I. Conner, Rachel I. Conner, Attorney at Law, New Orleans, LA, for Jarrell Neal. Juliet L. Clark, District Attorney's Office Parish of Jefferson, Gretna, LA, Matthew R. Clauss, Office of the District Attorney Department of Research and Appeals, Gretna, LA, for Darrel Vannoy, Warden.

NANNETTE JOLIVETTE BROWN, CHIEF JUDGE

Cecelia Trenticosta Kappel, The Capital Appeals Project, New Orleans, LA, Rachel I. Conner, Rachel I. Conner, Attorney at Law, New Orleans, LA, for Jarrell Neal.

Juliet L. Clark, District Attorney's Office Parish of Jefferson, Gretna, LA, Matthew R. Clauss, Office of the District Attorney Department of Research and Appeals, Gretna, LA, for Darrel Vannoy, Warden.

SECTION: "G" (3)

ORDER AND REASONS

NANNETTE JOLIVETTE BROWN, CHIEF JUDGE

Petitioner Jarrell Neal ("Petitioner"), a state prisoner incarcerated in the Louisiana State Penitentiary in Angola, Louisiana, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 from his conviction for two counts of first-degree murder and the sentence of death on each count.¹ Petitioner was convicted of murdering Greg Vickers and Fergus Robinson on March 31, 1998 at the home of Claudette Hurst in Metairie, Louisiana. The primary issue at Petitioner's trial was his identity as the shooter. Considering that Petitioner, his half-brother Zannie Neal, and his uncle Arthur Darby were apprehended by the police as they fled the scene, there was little dispute that the trio were involved in the commission of the offense and were each culpable to some extent. The defense sought to persuade the jury that Petitioner was the least culpable because he stayed in the car while his brother and uncle murdered the victims, whereas the State relied on the testimony of cooperating witness, Arthur Darby, to show that Petitioner was the shooter and thus the most culpable. In fact, the State's theory rested almost entirely on Darby's testimony, as Claudette Hurst, the only eyewitness to testify at Petitioner's trial, described the shooter as someone who seemed to match a physical description of Arthur Darby rather than Jarrell Neal.² As the Louisiana Supreme Court recognized on direct appeal, the jury's assessment of Arthur Darby's credibility was critical to the State's case.³

1 Rec. Doc. 4.

2 See State v. Neal , 2000-0674, p. 10-12 (La. 6/29/01); 796 So. 2d 649, 658.

3 Id. ("In the instant case, the jury heard Hurst's description of the offender and the witnesses’ testimony regarding the defendant's and Darby's clothing and physique, but, nevertheless, accepted Darby's testimony implicating the defendant. The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge on the ‘fact finder's discretion only to the extent necessary to guarantee the fundamental due process of law.’ ").

Despite the importance of Arthur Darby's testimony, it went largely unchallenged by defense counsel. Specifically, three pieces of evidence with clear impeachment value were not used to impeach Darby, nor were they offered into evidence during Petitioner's trial at all: (1) a serology report indicating the possible presence of blood on the shoes the Jefferson Parish Sheriff's Office collected from Arthur Darby on the night of the murder⁴ (the "serology report"); (2) a forensic report showing that Petitioner's shoes⁵ were excluded as the source of the bloody shoeprint found at the scene, whereas Zannie Neal's shoes⁶ could not be excluded as the source (the "shoeprint analysis report"); and (3) an inconsistent prior statement of Darby from February 22, 1999, wherein Darby told the police that Petitioner did not have a gun when he exited the vehicle (the "February 22, 1999 statement"). Petitioner primarily argues that the State violated Brady v. Maryland ⁷ by failing to disclose this evidence to the defense before trial.⁸ Alternatively, if the evidence was disclosed to the defense, Petitioner asserts that his counsel violated Strickland v. Washington ⁹ by failing to offer the evidence in his defense.¹⁰

4 The Jefferson Parish Sheriff's Office chain of custody form indicated that item 13 was one "pair Black ‘Nike Air’ no size from subject Darby at CHNO." Rec. Doc. 137-1 at 4 (March 31, 1998 Chain of Custody Form). During the long history of this litigation, the State has repeatedly conceded that Arthur Darby's shoes were identified as item 13. See, e.g. , Rec. Doc. 12 at 14. Accordingly, item 13 is referred to herein as Arthur Darby's shoes. See Rec. Doc. 4-1 at 2 (December 8, 1998 Scientific Analysis Report).

5 The Jefferson Parish Sheriff's Office chain of custody form indicated that item 78 were two "black shoes, unk[nown] brand [and] size. Received from Det. M. Moscona, at 725 Maple Av. Harvey, La." Rec. Doc. 137-1 at 12 (April 2, 1998 Chain of Custody Form). The Jefferson Parish Sheriff's Office crime lab notes refer to item 78 in more detail as "one pair of black HONCHOS – Steel Toe work shoes from (Neal, Jarrell)." Id. at 19 (April 25, 1998 Crime Lab Report). During the long history of this litigation, the State has repeatedly conceded that Petitioner's shoes were identified as item 78. See, e.g. , Rec. Doc. 12 at 15. Accordingly, item 78 is referred to herein as Petitioner's shoes.

6 The Jefferson Parish Sheriff's Office chain of custody form indicated that item 27 was one "pair black Nike tennis shoes from sub Neal, Zannie." Rec. Doc. 137-1 at 5 (March 31, 1998 Chain of Custody Form). During the long history of this litigation, the State has repeatedly conceded that Zannie Neal's shoes were identified as item 27. See, e.g. , Rec. Doc. 12 at 14. Accordingly, item 27 is referred to herein as Zannie Neal's shoes.

7 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

8 Rec. Doc. 4 at 22–47.

9 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

10 Rec. Doc. 4 at 24 ("Indeed, Arthur Darby's testimony was the only evidence that identified Jarrell Neal as the person who allegedly, with a[n AK-47] in hand, entered the scene of the crime, and, with specific intent, killed the victims. However, due to a combination of Brady violations, Napue violations, and the ineffectiveness of trial counsel, the jury rendered its verdicts without hearing critical evidence that Arthur Darby lacked credibility and that his self-interested testimony was plainly unreliable evidence."); Id. at 29 ("This blood evidence is, therefore, critical exculpatory and impeachment evidence, and defense counsel was ineffective in failing to test and present this evidence at Jarrell Neal's trial.").

In the state post-conviction proceedings, the trial court concluded that no Brady violation occurred because the shoeprint analysis report, the serology report, and the February 22, 1999 statement were disclosed to the defense.¹¹ Ultimately, for the reasons discussed in detail below, the Court credits the state trial court's factual finding and concludes that the Brady claim fails because Petitioner has not met his burden to show that these three items of evidence were in fact suppressed. Therefore, this Court's inquiry must focus on Petitioner's argument that counsel's failure to use this evidence to impeach Arthur Darby's testimony rendered his performance deficient.

11 State Rec., Vol. XX of XXXIII, Order Denying Application for Post-Conviction Relief, Oct. 9, 2013.

With respect to the Strickland claim, the state trial court found that counsel's decisions were "strategic choices" that could not have affected the verdict because Petitioner "was involved in the commission of the offense along with his co-defendants including attempting to kill police officers with a high powered assault rifle while fleeing the scene" and the "conviction would remain unchanged when considered in light of his role as a principal."¹² This finding was contrary to, or an unreasonable application of, clearly established federal law. The record reflects that defense counsel did not review the forensic evidence in this case, and his failure to use the evidence was an oversight, not a strategic choice.¹³

12 Id.

13 Rec. Doc. 4-1 at 67.

Moreover, there is a reasonable probability that but for this error, the result of the proceeding would have been different. Petitioner could not have been convicted of first-degree murder without evidence establishing his requisite mental state—that Petitioner had the specific intent to kill the victims. The testimony of Arthur Darby was the only evidence establishing that Petitioner entered the house with the specific intent to kill the victims. The jury heard testimony from Hurst, indicating that the shooter did not match the physical description of Petitioner, "but, nevertheless, accepted Darby's testimony implicating [Petitioner]."¹⁴ This credibility determination was within the purview of the jury. However, defense counsel failed to inform the jury of key information calling into question Darby's version of the events. Given the importance of Darby's testimony to the State's case and the value of the impeachment evidence, no fairminded jurist could conclude that the failure to impeach Darby's testimony with evidence showing the presence of blood on his shoe would not have "undermine[d] confidence in the outcome."¹⁵

14 Neal , 2000-0674 at p. 13; 796 So. 2d at 658.

15 See Hughes v. Vannoy , 7 F.4th 380, 392 (5th Cir. 2021) (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ).

Alternatively, even assuming that the state courts’ denial of relief was not unreasonable, Petitioner has demonstrated that he is entitled to relief on his procedurally defaulted ineffective assistance of counsel claim brought under Martinez v. Ryan . ¹⁶ In 2019, while this federal habeas petition was pending, an expert retained by Petitioner's counsel conducted DNA testing on a thread made from the blood debris evidence recovered from the left Nike brand tennis shoe, which the JPSO chain of custody report identifies as item 13 recovered from Arthur Darby.¹⁷ That testing showed that it is "approximately 100 quintillion times more likely [ ] the DNA originated from Greg Vickers than if the DNA originated from an unknown individual."¹⁸ The results of the DNA testing demonstrate that counsel's performance prejudiced the defense. While Darby testified that he remained in the car during the shooting, the DNA testing reveals the presence of the victim's blood on Darby's shoe. Therefore, both Petitioner's trial counsel and his post-conviction counsel were constitutionally ineffective for failing to test the blood evidence.

16 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012).

17 Rec. Doc. 137-1 at 4 (March 31, 1998 Chain of Custody Form); Rec. Doc. 105-5 (DNA Report).

18 Id. at 14.

The role of a federal habeas court is not to adjudicate a petitioner's guilt or innocence.¹⁹ For this reason, "[f]ederal habeas review of state convictions has traditionally been limited to claims of constitutional violations occurring in the course of the underlying state criminal proceedings."²⁰ A conviction cannot stand if it results "specifically and directly from the consequences of [the denial of] the right to effective counsel in violation of ... the Sixth Amendment to the United States Constitution."²¹ For the reasons discussed in more detail below, Petitioner was denied effective counsel both at trial and during the state post-conviction proceedings. Accordingly, his first-degree murder convictions and the resulting death sentences cannot stand.

19 Herrera v. Collins , 506 U.S. 390, 416, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) ("[I]n state criminal proceedings the trial is the paramount event for determining the guilt or innocence of the defendant.").

20 Id.

21 Young v. Dretke , 356 F.3d 616, 629 (5th Cir. 2004).

I. Background

A. Factual Background

On May 21, 1998, Petitioner was charged by Indictment with two counts of first-degree murder in Jefferson Parish, Louisiana.²² Petitioner was indicted with his older half-brother, Zannie Neal, and their uncle, Arthur Darby.²³ After Darby turned state's witness and the trial court severed the brothers’ cases, Petitioner's case proceeded to trial by jury beginning on February 23, 1999 in the Twenty-Fourth Judicial District Court for the Parish of Jefferson.²⁴

22 Neal , 2000-0674 at p. 1; 796 So. 2d at 651 ; State Rec., Vol. I of XXXIII, Indictment.

23 Neal , 2000-0674 at p. 1; 796 So. 2d at 652 ; State Rec., Vol. I of XXXIII, Indictment.

24 Neal , 2000-0674 at p. 1; 796 So. 2d at 652 ; State Rec., Vol. I of XXXIII, Trial Minutes.

The charges related to the murders of Greg Vickers and Fergus Robinson on March 31, 1998 at the home of Claudette Hurst in Metairie, Louisiana. At Petitioner's trial, Claudette Hurst testified that she was at home that evening with her boyfriend Fergus Robinson, her three children, her brother Carl Duncan, and a friend, Keinna Porter.²⁵ Hurst had fallen asleep on a sofa in the den.²⁶ At approximately 11:30 p.m., she was awakened by "some noise" and heard Robinson "telling someone to take it outside."²⁷ Hurst looked into an adjoining room and saw a person (later identified as victim Greg Vickers) with a red hood over his head kneeling on the floor and a tall, thin person dressed in black clothing aiming a rifle at Vickers.²⁸ Although Hurst was acquainted with Petitioner, she testified that she never saw him on the night of the shooting.²⁹

25 State Rec., Vol. V of XXXIII, Feb. 25, 1999 Trial Transcript at pp. 80–81.

26 Id. at 82.

27 Id. at 84–85.

28 Id. at 85, 106–07.

29 Id. at 90, 110.

Hurst and Robinson ran to a bedroom where Carl Duncan and Keinna Porter were smoking marijuana.³⁰ Duncan and Robinson held the door shut against the intruder's repeated attempts to push his way into the room.³¹ Unable to enter the room, the intruder fired multiple shots through the door, hitting both men.³² Robinson suffered a fatal gunshot wound to his right thigh which severed his femoral artery.³³ Duncan was shot in the right arm but survived the injury.³⁴

30 Id. at 86, 116–18.

31 Id. at 118.

32 Id. at 119–20.

33 Id. at 63.

34 Id. at 120.

Greg Vickers’ body was found lying near the threshold of a side door.³⁵ He suffered two fatal gunshot wounds to his neck which severed his carotid artery.³⁶ Crime scene investigation uncovered four spent 7.62 caliber casings, four bullet holes in the door to the bedroom, and a bloody shoeprint on the tile.³⁷ Investigators did not dust for fingerprints.³⁸ Robinson was found holding twelve rocks of crack cocaine in his hand, and Vickers had a crack pipe in his back pocket.³⁹ Both victims tested positive for cocaine.⁴⁰ Testimony was also presented to show that Robinson was a drug dealer in the area and Vickers was a frequent customer.⁴¹

35 State Rec., Vol. VI of XXXIII, Feb. 27, 1999 Trial Transcript at pp. 10–11.

36 State Rec., Vol. V of XXXIII, Feb. 25, 1999 Trial Transcript at p. 40.

37 State Rec., Vol. VI of XXXIII, Feb. 26, 1999 Trial Transcript at p. 144.

38 Id. at 156.

39 Id. at 177–78; State Rec., Vol. VI of XXXIII, Feb. 27, 1999 Trial Transcript at pp. 36–37.

40 State Rec., Vol. V of XXXIII, Feb. 25, 1999 Trial Transcript at pp. 60, 69.

41 State Rec., Vol. VI of XXXIII, Feb. 27, 1999 Trial Transcript at pp. 10–11.

During this time, Seneca Johnson, a next-door neighbor who was seven-weeks pregnant, and her boyfriend, Larry Osborne, were returning home from a nearby Shell station.⁴² While they were sitting in Osborne's car, the couple heard numerous gunshots and Osborne saw two men wearing ski masks running down the sidewalk.⁴³ As the men approached his car, Osborne noticed one of the men carrying a rifle.⁴⁴ Osborne pushed Johnson's head down and leaned over her but one of the men began shooting.⁴⁵ A bullet struck Johnson in the buttocks.⁴⁶

42 State Rec., Vol. V of XXXIII, Feb. 25, 1999 Trial Transcript at pp. 161–62.

43 Id. at 153, 162.

44 Id. at 153.

45 Id.

46 Id. at 162–63.

At the same time, an off-duty Jefferson Parish Sheriff's deputy, Derrick McGee, was dropping his father off at his home around the corner from the Hurst residence.⁴⁷ Deputy McGee testified that he heard numerous gunshots and saw a black Toyota 4-Runner driving away "at a high rate of speed."⁴⁸ Deputy McGee began following the 4-Runner in his marked police cruiser.⁴⁹ After observing the 4-Runner run a stop sign and a red light, Deputy McGee activated his lights and siren and radioed for backup, and a vehicle driven by Deputy Bourgeois joined the pursuit.⁵⁰

47 State Rec., Vol. V of XXXIII, Feb. 26, 1999 Trial Transcript at pp. 6, 16.

48 Id. at 17.

49 Id. at 19.

50 Id. at 20–23.

During the chase, the deputies observed a black male (later identified as Petitioner Jarrell Neal) lean out of the passenger's window and begin shooting at them with an AK-47.⁵¹ Moments later, Petitioner fell out of the 4-Runner and began running toward a nearby drainage canal.⁵² After a brief chase, deputies arrested Petitioner and recovered the AK-47.⁵³ Ballistics testing later showed that casings recovered from inside the 4-Runner and bullets recovered from Fergus Robinson's body were fired from the same AK-47.⁵⁴

51 Id. at 27, 63–64. The exact model of the gun was a MAK-90. State Rec., Vol. VI of XXXIII, Feb. 27, 1999 Trial Transcript at p. 51. However. The gun is referred to as an AK-47 by the Louisiana Supreme Court. Neal , 2000-0674 at p. 3; 796 So. 2d at 653. Therefore, for consistency, the Court uses the term AK-47 throughout this opinion.

52 State Rec., Vol. V of XXXIII, Feb. 26, 1999 Trial Transcript at p. at 27.

53 Id. at 29; State Rec., Vol. VI of XXXIII, Feb. 26, 1999 Trial Transcript at p. 69.

54 State Rec., Vol. VI of XXXIII, Feb. 27, 1999 Trial Transcript at pp. 55–58.

While deputies were arresting Petitioner, the driver of the 4-Runner (later identified as Arthur Darby) jumped out of the vehicle and ran to nearby houses, where he hid for about fifteen minutes until a K-9 unit located him.⁵⁵ Both Darby and Petitioner were arrested and taken to Charity Hospital for treatment.⁵⁶ The arresting officer testified that Petitioner was wearing khaki pants.⁵⁷ Darby testified that he was wearing a black sweater and jeans.⁵⁸ Deputies also arrested Zannie Neal who was sitting in the backseat of the 4-Runner.⁵⁹ A subsequent search of the 4-Runner yielded a .38 Colt revolver on the driver's side floorboard, a maroon ski mask, a Pittsburgh Steelers baseball cap, one live 7.62 round, and four spent 7.62 casings.⁶⁰

55 State Rec., Vol. VI of XXXIII, Feb. 26, 1999 Trial Transcript at pp. 106–09.

56 Id. at 97.

57 Id. at 53.

58 Id. at 225.

59 Id. at 108.

60 Id. at 165–67.

As mentioned above, Darby testified for the State at Petitioner's trial. At trial, the State posited that the shootings had been motivated by a drug debt owed by Franklin McQueen to Zannie Neal.⁶¹ McQueen was the stepfather of Claudette Hurst.⁶² He stayed at Hurst's home in the past but was not there on the night of the offense.⁶³

61 State Rec., Vol. V of XXXIII, Feb. 25, 1999 Trial Transcript at p. 24.

62 Id. at 91.

63 Id.

At trial, Darby testified that Petitioner and Zannie Neal came to his house between 9:30 and 10:00 p.m. on the night of the murders.⁶⁴ According to Darby, Zannie told him that "he had a little drama" and "might need a driver."⁶⁵ Zannie also told Darby that someone owed him money for drugs.⁶⁶ Darby testified that Zannie was driving, he was in the front seat, and Petitioner was in the back seat.⁶⁷ After they had gone about a block, Zannie asked Darby if he had his .38 pistol, which he did not.⁶⁸ Zannie told Darby he might need it so they returned to Darby's house to retrieve the pistol.⁶⁹

64 State Rec., Vol. VI of XXXIII, Feb. 26, 1999 Trial Transcript at p. 208.

65 Id. at 209.

66 Id.

67 Id. at 212.

68 Id.

69 Id.

When they arrived at the Hurst residence, Darby testified that Zannie told him to get in the driver's seat.⁷⁰ According to Darby, Petitioner exited the vehicle with the AK-47 and went inside the house with Zannie.⁷¹ Moments later, Darby heard numerous gunshots and Petitioner and Zannie Neal came running back to the 4-Runner.⁷² Darby also stated that when the men returned, Petitioner was holding the AK-47 and Zannie had a pistol.⁷³ Darby testified that Zannie was wearing a red ski mask and Petitioner was wearing a Steelers cap.⁷⁴ According to Darby's testimony, Petitioner indicated that he had shot someone in the house, and Zannie told him that his gun jammed.⁷⁵ Darby further testified that as they fled from the scene Petitioner said "the ni**er was down bad for trying to play him, but now he crying like a little b**ch."⁷⁶ Darby also testified that it was Petitioner who shot at the police during the getaway chase.⁷⁷

70 Id. at 213.

71 Id. at 213–14.

72 Id. at 215.

73 Id.

74 Id. at 215, 224.

75 Id. at 216.

76 Id.

77 Id. at 218.

On February 27, 1999, Petitioner was convicted of two counts of first-degree murder.⁷⁸ The penalty phase began on March 1, 1999.⁷⁹ During the penalty phase, the State called Fergus Robinson's mother and brother and Greg Vicker's mother and co-worker to provide victim impact statements.⁸⁰ The defense called seven witnesses, including Petitioner's parents and maternal grandparents, to describe his childhood and relationship with his 3-year-old son.⁸¹ At the conclusion of the penalty phase, the jury unanimously recommended a sentence of death.⁸² With respect to each count, the jury found that the following aggravating circumstances warranted a death sentence: (1) Petitioner was engaged in the perpetration or attempted perpetration of an aggravated burglary; (2) Petitioner was engaged in the attempted distribution, exchange, sale, or purchase of a controlled dangerous substance; and (3) Petitioner knowingly created a risk of death or serious bodily harm to more than one person.⁸³ On June 4, 1999, the state trial court denied Petitioner's motion for a new trial and imposed the death sentences.⁸⁴

78 State Rec., Vol. VII of XXXIII, Feb. 27, 1999 Trial Transcript at p. 162.

79 State Rec., Vol. VII of XXXIII, Mar. 1, 1999 Penalty Phase Transcript.

80 Id.

81 Id.

82 Id. at 129–32.

83 Id. (citing La. Code Crim. Proc. art. 905.4(a)(1), (4), (11) ); State Rec., Vol. I of XXXIII, Jury Verdict.

84 State Rec., Vol. VII of XXXIII, Jun. 4, 1999 Sentencing Transcript; State Rec., Vol. I of XXXIII, Sentencing Minutes.

On November 10, 1999, Zannie Neal was convicted by a jury of two counts of second-degree murder.⁸⁵ Thereafter, Zannie Neal was sentenced to serve a term of life imprisonment on each count, to run concurrently, and without benefit of parole, probation, or suspension of sentence.⁸⁶ In exchange for his testimony in both brothers’ cases, Darby pled guilty to two counts of manslaughter and was sentenced to twenty years’ imprisonment.⁸⁷

85 See Neal v. Cain , No. 06-8714, Report and Recommendation (E.D. La. Feb. 14, 2012).

86 Id.

87 Id. ; State Rec., Vol. VI of XXXIII, Feb. 26, 1999 Trial Transcript at pp. 207, 228–29.

B. Direct Appeal and the State Post-Conviction Proceedings

On June 29, 2001, the Louisiana Supreme Court affirmed Petitioner's conviction and sentence.⁸⁸ On direct appeal, Petitioner argued, inter alia , that the State withheld exculpatory evidence in violation of Brady v. Maryland . ⁸⁹ Specifically, Petitioner alleged that the State failed to provide the serology report, which revealed "the possible presence of blood" on Arthur Darby's shoes, and the shoeprint analysis report, which indicated that a bloody shoeprint at the crime scene did not match Petitioner's shoes but that Zannie Neal's shoes could not be excluded as the source of the print. After oral argument, the State filed a motion to supplement the record with an unsigned letter dated January 19, 1999, addressed to defense counsel and enclosing various reports, including the serology report and the shoeprint analysis report.⁹⁰ The State then filed a Second Motion to Supplement the Record with a green domestic return receipt from the post office signed by Ralph Barnett on February 3, 1999.⁹¹ The Louisiana Supreme Court determined that there was insufficient evidence in the record to determine: (1) whether Petitioner's trial counsel received the reports prior to trial, and (2) if he did not, whether these report contained exculpatory material under Brady . ⁹² Accordingly, the Louisiana Supreme Court held that the claim was "relegated to post-conviction relief, where an evidentiary hearing may be conducted to develop a sufficient record on the issues raised."⁹³

88 Neal , 2000-0674 at p. 18; 796 So. 2d at 663. On September 21, 2001, the Louisiana Supreme Court granted, in part, Petitioner's request for rehearing to clarify its opinion relative to an assignment of error regarding a jury instruction. Id. at p. 18; 796 So. 2d at 663–64.

89 Id. at p. 13; 796 So. 2d at 659.

90 Id. at p. 13–14; 796 So. 2d at 660.

91 Id.

92 Id.

93 Id.

Petitioner filed a petition for writ of certiorari before the United States Supreme Court, which was denied on March 18, 2002.⁹⁴ On May 13, 2002, Petitioner's request for rehearing was also denied by the United States Supreme Court.⁹⁵

94 Neal v. Louisiana , 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

95 Neal v. Louisiana , 535 U.S. 1075, 122 S.Ct. 1957, 152 L.Ed.2d 859 (2002).

On May 23, 2002, Petitioner filed a pro se application for post-conviction relief in the state trial court.⁹⁶ On May 31, 2002, the state trial court dismissed the application because it found that Petitioner had not established entitlement to appointed counsel.⁹⁷ On October 3, 2003, the Louisiana Supreme Court vacated the trial court's order.⁹⁸ The Louisiana Supreme Court found that Petitioner was entitled to post-conviction counsel and directed the trial court to give Petitioner's counsel a reasonable opportunity to prepare and litigate expeditiously an application for post-conviction relief.⁹⁹

96 State Rec., Vol. XXI of XXXIII, Pro Se Application for Post-Conviction Relief, May 23, 2002.

97 State Rec., Vol. XXI of XXXIII, Trial Court Order, May 31, 2002.

98 State ex rel. Neal v. Cain , 2002-2258 (La. 10/3/03); 871 So. 2d 1071.

99 Id.

In 2011, post-conviction counsel supplemented the post-conviction relief application before the state trial court.¹⁰⁰ In the amended supplemental petition, Petitioner argued, inter alia , that the State failed to disclose six pieces of material exculpatory and impeachment evidence in violation of Brady : (1) forensic reports showing that Zannie Neal's shoes could not be excluded as the source of the bloody shoeprint found at the scene; (2) the serology report indicating the possible presence of blood on Darby's shoe; (3) an inconsistent prior statement of Darby; (4) letters from Zannie Neal to Darby; (5) evidence regarding pending charges against witness Keinna Porter and an apparent plea deal; and (6) all of the initial and supplemental reports of the police officers that were prepared before trial.¹⁰¹ Petitioner also claimed that his counsel performed ineffectively in numerous ways, including in failing to conduct any independent investigation relating to the culpability-phase of trial and in failing to consult forensic experts and test forensic evidence.¹⁰² As part of his ineffective assistance of counsel claims, Petitioner argued that his trial counsel was ineffective for failing to test the shoeprint and failing to test the evidence (including Arthur Darby's shoe) for the presence of blood.¹⁰³

100 State Rec., Vol. X of XXXIII, Supplemental Petition for Post-Conviction Relief and Motion for Evidentiary Hearing, Aug. 18, 2011; State Rec., Vol. XIII of XXXIII, Amended Supplemental Petition for Post-Conviction Relief and Motion for Evidentiary Hearing, Sept. 23, 2011.

101 State Rec., Vol. XIII of XXXIII, Amended Supplemental Petition for Post-Conviction Relief and Motion for Evidentiary Hearing at pp. 10–38, Sept. 23, 2011.

102 Id. at 47–136.

103 Id. at 114–16. On September 7, 2012, Petitioner filed a Second Supplemental Petition for Post-Conviction Relief and Motion for Evidentiary Hearing. State Rec., Vol. XVII of XXXIII, Second Supplemental Petition for Post-Conviction Relief and Motion for Evidentiary Hearing, Sept. 7, 2012. The second supplemental petition raised one additional claim that Petitioner was denied effective assistance of counsel during voir dire. Id. On October 15, 2012, the State filed a Memorandum in Opposition to the petitions. State Rec., Vol. XVII of XXXIII, State's Memorandum in Opposition, Oct. 15, 2012. On May 1, 2013, Petitioner filed a reply brief in further support of the petition. State Rec., Vol. XVIII of XXXIII, Reply Memorandum, May 1, 2013.

On October 9, 2013, the state trial court dismissed Petitioner's claims without an evidentiary hearing.¹⁰⁴ With respect to the Brady claims, the state trial court found:

104 State Rec., Vol. XX of XXXIII, Order Denying Application for Post-Conviction Relief, Oct. 9, 2013.

First, he alleges that the state failed to timely provide the defense with forensic testing which tended to place co-defendants, Zannie Neal and Arthur Darby at the scene of the crime as well as undermining the credibility of Darby's testimony that he remained in the vehicle during the time that the murders were committed. Defendant argues that the State did not provide reports indicating the presence of blood on Darby's shoes as well as reports that failed to exclude Zannie Neal as the source of a bloody shoe print found at the scene.

Upon review, the forensic reports do not necessarily exculpate the defendant or exclude him as the source of a bloody shoe print. Furthermore, the reports were provided to defense counsel in a letter sent via certified mail January 19, 1999 for which defense counsel signed acknowledging receipt. In addition, defense counsel's sworn affidavit confirms that it is his signature on the postal return receipt card.

Defendant also contends that the State failed to provide inconsistent statements of Arthur Darby in violation of Brady . This claim is without merit. The defendant has not demonstrated how disclosure was untimely or prejudicial to his case. The record indicates that defense counsel had each of the statements to which the defendant refers. Defendant asserts that Darby made numerous other statements but does not identify any with specificity and assumes they contain Brad y material.

Likewise, the claim that an alleged letter from Zannie Neal to Arthur Darby contains Brady material has no factual basis and is speculative in nature.

The contention that the State failed to disclose all of the initial police reports is also without merit. The record indicates that the defense was provided with the initial police report as required by R.S. 44:3. Additional reports which are investigative or supplemental in nature are not required to be produced until the conviction becomes final.

Defendant's claims regarding Keinna Porter are also without merit. She pled as charged and did not receive a reduced sentence. There is nothing in the

record to suggest that there was a deal with Porter in exchange for her testimony or that she benefited from testifying at trial. Furthermore, defendant's argument that State misrepresented Porter's testimony was not properly preserved for review because there was not an objection at trial. Therefore, it is deemed waived under C.Cr.P.Art. 930.4 for failure to make a contemporaneous objection at the time of trial.¹⁰⁵

105 Id. at 1–2.

With respect to the ineffective assistance of claims, the state trial court found:

Next, the defendant makes many claims for ineffective assistance of counsel with regard to defense counsel's investigation and cross examination of witnesses. These claims have no merit. His investigation and examination of witnesses were strategic choices which do not constitute ineffective assistance of counsel. Furthermore, they would not have had any effect on the outcome given that the record establishes that the defendant was involved in the commission of the offense along with his co-defendants including attempting to kill police officers with a high powered assault rifle while fleeing the scene.

...

The defendant also asserts that his counsel was deficient for failing to consult with forensic experts, conduct forensic tests as well as consulting a forensic pathologist. These claims are without merit. Counsel's decisions were trial strategies which do not constitute ineffective assistance of counsel. Furthermore, the defendant has not shown that he was prejudiced by counsel's decisions regarding experts. Defendant's conviction would remain unchanged when considered in light of his role as a principal.¹⁰⁶

106 Id. at 3–4.

On November 6, 2013, Petitioner filed a motion to reconsider,¹⁰⁷ which the trial court denied on November 7, 2013.¹⁰⁸

107 State Rec., Vol. XX of XXXIII, Motion to Reconsider, Nov. 6, 2013.

108 State Rec., Vol. XX of XXXIII, Order Denying Motion to Reconsider, Nov. 7, 2013.

Petitioner filed a writ application with the Louisiana Supreme Court, which was denied on April 17, 2015, without written reasons.¹⁰⁹ Petitioner filed a petition for writ of certiorari before the United States Supreme Court, which was denied on January 11, 2016.¹¹⁰

109 State v. Neal , 14-0259 (La. 4/17/2015); 168 So. 3d 391.

110 Neal v. Louisiana , 577 U.S. 1069, 136 S.Ct. 793, 193 L.Ed.2d 722 (2016).

C. The Federal Habeas Proceedings

Petitioner filed this federal habeas petition on February 10, 2016.¹¹¹ Petitioner raises twenty-one grounds for relief: (1) Petitioner's due process rights were violated by the State's suppression of material favorable evidence and impeachment information under Brady v. Maryland ; (2) the State violated Napue v. Illinois by failing to correct false and misleading testimony of state witnesses; (3) trial counsel was ineffective for failing to object to the prosecution's repeated statements to the jury that Arthur Darby's testimony was "the truth;" (4) trial counsel performed ineffectively by failing to impeach Arthur Darby with available impeachment evidence; (5) trial counsel was ineffective for failing to challenge the State's forensic evidence; (6) prosecutorial misconduct violated Petitioner's right to a fair trial; (7) Petitioner's due process rights were violated by the State's improper introduction of other crimes evidence; (8) the State struck multiple qualified African-American jurors under the guise of discriminatory pretext in violation of the Equal Protection Clause; (9) extrajudicial information violated Petitioner's right to a fair trial and to confront the witnesses against him due to counsel's ineffective assistance at voir dire; (10) the trial court impermissibly granted multiple challenges for cause, ensuring that the jury was unconstitutionally biased toward imposing the death penalty; (11) trial counsel was ineffective for failing to investigate and prepare for the guilt phase of trial; (12) Petitioner's right to confrontation was violated by the admission of hearsay evidence at his trial and trial counsel was ineffective for failing to challenge the hearsay evidence; (13) trial counsel was ineffective for failing to investigate and present powerful and readily-available mitigation evidence; (14) Petitioner's Eighth and Fourteenth Amendment rights were violated when the jury was impermissibly told and instructed multiple times that their verdict was not the final determination of Petitioner's sentence; (15) Petitioner's conviction, obtained through improper jury instructions, is a violation of due process and trial counsel was ineffective for failing to object to the jury instructions; (16) Petitioner's death sentence rests on insufficient evidence of the aggravating circumstances; (17) trial counsel was ineffective for failing to challenge and explain the State's evidence of Petitioner's prior criminal history; (18) Petitioner's execution would violate the Eighth Amendment to the United States Constitution; (19) Petitioner's execution is constitutionally excessive; (20) cumulative error caused by ineffective assistance of counsel requires reversal; and (21) cumulative error caused by the State's withholding of favorable material evidence requires reversal.¹¹² The State filed a response to the habeas corpus petition on July 15, 2016.¹¹³

111 Rec. Doc. 4.

112 Id.

113 Rec. Doc. 12.

On November 18, 2016, Petitioner filed a motion requesting leave to file an amendment to the petition for writ of habeas corpus to add a claim that both his trial and post-conviction counsel were ineffective for failing to investigate a key witness, Emmett Taylor ("Taylor"), who could have testified that Arthur Darby admitted that his testimony was not the truth.¹¹⁴ The State opposed the motion.¹¹⁵ On May 2, 2017, the Court granted the motion to amend.¹¹⁶ On July 1, 2017, the State filed a response to the amended petition.¹¹⁷

114 Rec. Doc. 27.

115 Rec. Doc. 45-1 at 1.

116 Rec. Doc. 53.

117 Rec. Doc. 60.

On January 12, 2017, Petitioner filed a Motion for Evidentiary Hearing.¹¹⁸ On April 19, 2017, the State filed an opposition to the motion.¹¹⁹ On July 19, 2017, with leave of Court, Petitioner filed a reply brief in further support of the motion for an evidentiary hearing.¹²⁰ On August 28, 2017, the Court granted Petitioner's motion to the extent it requested a hearing on Petitioner's procedurally defaulted claims raised under Martinez v. Ryan . ¹²¹

118 Rec. Doc. 35.

119 Rec. Doc. 51.

120 Rec. Doc. 61.

121 Rec. Doc. 66.

On January 29, 2019, the Court called a status conference to discuss the status of the case.¹²² Considering Petitioner's counsel's representation that additional time was needed to investigate the case, the Court issued an Order staying the case.¹²³

122 Rec. Doc. 90.

123 Rec. Doc. 93.

On February 25, 2019, Petitioner filed a "Motion for Leave to File Amendment to Petition for Habeas Corpus."¹²⁴ Petitioner sought leave of Court to amend the habeas petition to raise four additional claims.¹²⁵

124 Rec. Doc. 94.

125 Rec. Doc. 94-4.

In the motion to amend, Petitioner noted that he received leave of Court to conduct DNA testing of evidence retained by the Jefferson Parish Sheriff's Office Crime Lab.¹²⁶ Petitioner asserted that his counsel had received preliminary findings showing that there is a reasonable likelihood that the blood found on the left Nike brand tennis shoe Darby was wearing on the night of the murders came from one of the victims, Greg Vickers.¹²⁷ In light of this additional evidence, Petitioner sought leave of Court to amend the habeas petition to raise the following claims: (23) Petitioner is actually innocent of the murders of Gregory Vickers and Fergus Robinson; (24) both trial and post-conviction counsel were ineffective for failing to conduct DNA testing on the thread created by the JPSO Crime lab to preserve blood evidence recovered from Darby's left shoe; (25) the cumulative effect of the Brady evidence requires reversal; and (26) the cumulative error caused by ineffective assistance of counsel requires reversal.¹²⁸ The State opposed the motion.¹²⁹ On April 29, 2019, the Court granted the motion to amend.¹³⁰ On July 1, 2019, the State filed a response to the amended petition.¹³¹

126 Id. at 1.

127 Id. at 2.

128 Id. at 7–12, 14.

129 Rec. Doc. 98.

130 Rec. Doc. 104.

131 Rec. Doc. 112.

On August 13, 2019, the Court called a status conference to discuss the status of the case.¹³² During the status conference, the Court set the evidentiary hearing for January 21, 2020.¹³³ The Court also ordered that the evidentiary hearing would include claims involving new evidence asserted in the amended petition for habeas relief.¹³⁴

132 Rec. Doc. 119.

133 Id.

134 Id.

On September 4, 2019, the Court granted a motion to substitute counsel filed by the State.¹³⁵ On October 29, 2019, the Court called another status conference for the parties to provide the Court with an update on the status of the case.¹³⁶ At that time, counsel for the State indicated that it intended to file a motion to continue the evidentiary hearing.¹³⁷ On December 23, 2019, the Court granted a motion to continue filed by the State,¹³⁸ and set the evidentiary hearing for April 21, 2020.¹³⁹ On April 14, 2020, the Court continued the evidentiary hearing due to the COVID-19 pandemic.¹⁴⁰ On April 21, 2020, the Court held a status conference for the parties to provide the Court with an update on the status of the case.¹⁴¹ The Court set the evidentiary hearing for June 30, 2020.¹⁴²

135 Rec. Doc. 123.

136 Rec. Doc. 126.

137 Id.

138 Rec. Doc. 138.

139 Rec. Doc. 139.

140 Rec. Doc. 156.

141 Rec. Doc. 159.

142 Rec. Doc. 160.

On May 5, 2020, Petitioner filed a Motion for Partial Summary Judgment.¹⁴³ Petitioner argued that the prosecution failed to disclose material impeachment evidence and other favorable evidence contradicting the testimony of the prosecution's key witness, Arthur Darby.¹⁴⁴ Specifically, Petitioner submitted that there was no genuine issue of material fact in dispute and there was a reasonable probability that the result of the proceeding would have been different had the undisclosed evidence been before the jury, in light of the following undisputed facts:

143 Rec. Doc. 166.

144 Id. at 1.

(1) Arthur Darby testified at Mr. Neal's 1999 trial that Mr. Neal and his brother committed this murder while Darby remained in the vehicle;

(2) A shoe collected by the State as evidence and identified as being seized from Darby tested positive for the presence of blood, and samples of the blood taken from his shoe were saved for DNA testing;

(3) Affidavits submitted by Mr. Neal establish that trial counsel never received a copy of the serology report;

(4) DNA testing establishes that the blood of the victim, Greg Vickers, was found on the Nike shoe attributed by the JPSO Chain of Custody and numerous additional law enforcement documents to Darby;

(5) Arthur Darby gave a conflicting version of the events in a statement taken by members of the Jefferson Parish District Attorney's Office just days before the start of trial, including a statement that Jarrell Neal did not have a weapon when he left the vehicle; and

(6) Forensic shoeprint analysis conducted by the State found that Zannie Neal's Nike shoe could not be excluded as the source of a bloody shoeprint found near Gregory Vickers’ body at the scene.¹⁴⁵

145 Rec. Doc. 166-1 at 3.

To the extent that the Brady claims were adjudicated on the merits in state court, Petitioner argued that the state court's decision was based on an unreasonable determination of the facts in light of the evidence or an unreasonable application of clearly established federal law.¹⁴⁶ Further, Petitioner asserted that the Brady claims have "been fundamentally changed and strengthened by the DNA analysis of the blood on Darby's shoe and results matching the victim—which was not before the state court due to the ineffectiveness of post-conviction counsel."¹⁴⁷ Because Brady claims must be considered cumulatively, Petitioner argued that the ultimate ruling of the state court denying relief is unworthy of deference.¹⁴⁸

146 Id. at 20.

147 147 Id.

148 148 Id.

In the alternative, Petitioner argued that he was entitled to habeas relief because even if the reports were provided, defense counsel was ineffective for failing to use the reports at trial.¹⁴⁹ Petitioner argued that his trial counsel had a duty to consult with independent forensic experts, both to potentially present in the defense's case and to properly cross-examine the State's experts.¹⁵⁰ Petitioner asserted that this Court did not need to resolve the question of whether the prosecution disclosed the reports because Brady ’s "materiality" standard "is identical to" the prejudice standard for ineffective assistance of counsel claims.¹⁵¹

149 Id. at 25.

150 Id.

151 Id. at 26 (quoting Johnson v. Scott , 68 F.3d 106, 109–10 (5th Cir. 1995) ).

On May 18, 2020, the State filed an opposition to the motion.¹⁵² Considering the facts in the light most favorable to the State and drawing every inference in its favor, the State asserted that Petitioner failed to carry his heavy burden of producing clear and convincing evidence sufficient to overcome the presumption in favor of the state court's resolution of the claims.¹⁵³

152 Rec. Doc. 169.

153 Id. at 6.

On March 30, 2021, the Court issued an Order denying the motion for partial summary judgment.¹⁵⁴ The Court noted that the state court made a factual finding that the serology report, the forensic report, and the statement of Arthur Darby were disclosed to the defense without the benefit of an evidentiary hearing, even though on direct appeal the Louisiana Supreme Court found that there was insufficient information to decide this issue without an evidentiary hearing.¹⁵⁵ Considering the inconsistencies in the record, the scant evidence to support a finding that the documents were disclosed to the defense, the Louisiana Supreme Court's finding on direct appeal that there was insufficient evidence in the record to determine whether the evidence was disclosed to the defense before trial, and the trial court's failure to hold an evidentiary hearing to develop the record on this issue, the Court ordered a limited evidentiary hearing on the issue of whether the shoeprint analysis report, the serology report, and the prior statement of Darby were disclosed to the defense before trial.¹⁵⁶ The evidentiary hearing was held on June 18, 2021.¹⁵⁷ Following the evidentiary hearing, the Court took the matter under submission.

154 Rec. Doc. 178.

155 Id.

156 Id.

157 Rec. Doc. 208.

II. Legal Standard

Following the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the standard of review used to evaluate issues presented in habeas corpus petitions was revised "to ensure that state-court convictions are given effect to the extent possible under law."¹⁵⁸ "Under AEDPA, state courts play the leading role in assessing challenges to state sentences based on federal law."¹⁵⁹ For questions of fact, federal courts must defer to a state court's findings unless they are "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."¹⁶⁰ Pursuant to 28 U.S.C. § 2254(e)(1), "a determination of a factual issue made by a State court [is] presumed to be correct," and the petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence."¹⁶¹

158 Bell v. Cone , 535 U.S. 685, 693, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).

159 Shinn v. Kayer , ––– U.S. ––––, 141 S. Ct. 517, 526, 208 L.Ed.2d 353 (2020).

160 28 U.S.C. § 2254(d)(2).

161 Id. § 2254(e)(1).

"[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance."¹⁶² "[E]ven if ‘[r]easonable minds reviewing the record might disagree’ about the finding in question, ‘on habeas review that does not suffice to supersede the trial court's ... determination.’ "¹⁶³ However, "[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review, and does not by definition preclude relief."¹⁶⁴

162 Wood v. Allen , 558 U.S. 290, 301, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010).

163 Id. (quoting Williams v. Taylor , 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ).

164 Brumfield v. Cain , 576 U.S. 305, 314, 135 S.Ct. 2269, 192 L.Ed.2d 356 (2015) (quoting Miller-El v. Cockrell , 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (internal quotation marks omitted)).

A state court's determinations on mixed questions of law and fact or pure issues of law are to be upheld unless they are "contrary to, or involve[ ] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."¹⁶⁵ Regarding this standard, the United States Court of Appeals for the Fifth Circuit further explains:

165 28 U.S.C. § 2254(d)(1).

A state-court decision is contrary to clearly established precedent if the state court applies a rule that contradicts the governing law set forth in the Supreme Court's cases. A state-court decision will also be contrary to clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from Supreme Court precedent. A state-court decision involves an unreasonable application of Supreme Court precedent if the state court identifies the correct governing legal rule from the Court's cases but unreasonably applies it to the facts of the particular state prisoner's case.¹⁶⁶

166 Wooten v. Thaler , 598 F.3d 215, 218 (5th Cir. 2010) (cleaned up).

If Supreme Court case law "give[s] no clear answer to the question presented, let alone one in [the petitioner's] favor, ‘it cannot be said that the state court unreasonably applied clearly established Federal law.’ "¹⁶⁷ Additionally, "unreasonable is not the same as erroneous or incorrect; an incorrect application of the law by a state court will nonetheless be affirmed if it is not simultaneously unreasonable."¹⁶⁸

167 Wright v. Van Patten , 552 U.S. 120, 126, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008) (quoting Carey v. Musladin , 549 U.S. 70, 77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) ).

168 Puckett v. Epps , 641 F.3d 657, 663 (5th Cir. 2011) (cleaned up).

AEDPA requires "a state prisoner [to] show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error ... beyond any possibility for fairminded disagreement."¹⁶⁹ However, AEDPA's deferential standards of review apply only to claims adjudicated on the merits by the state courts.¹⁷⁰ Claims that were not adjudicated on the merits by the state courts are reviewed "de novo without applying AEDPA-mandated deference."¹⁷¹

169 Burt v. Titlow , 571 U.S. 12, 20, 134 S.Ct. 10, 187 L.Ed.2d 348 (2013) (quoting Harrington v. Richter , 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ).

170 Henderson v. Cockrell , 333 F.3d 592, 597 (5th Cir. 2003).

171 Carty v. Thaler , 583 F.3d 244, 253 (5th Cir. 2009) (citing Henderson , 333 F.3d at 597 ).

III. Analysis

A. The Brady Claims

Petitioner argues that the State withheld the following six pieces of material evidence from the defense: (1) forensic reports showing that Zannie Neal's shoes could not be excluded as the source of the bloody shoeprint found at the scene;¹⁷² (2) a serology report indicating the possible presence of blood on Darby's shoe;¹⁷³ (3) an inconsistent prior statement of Darby;¹⁷⁴ (4) letters from Zannie Neal to Darby;¹⁷⁵ (5) evidence regarding pending charges against witness Keinna Porter and an apparent plea deal;¹⁷⁶ and (6) all of the initial and supplemental reports of the police officers that were prepared before trial.¹⁷⁷ This claim is analyzed under the standard articulated by the Supreme Court in Brady v. Maryland and its progeny.

172 Rec. Doc. 4 at 24–27.

173 Id. at 27–29.

174 Id. at 29–39.

175 Id. at 39–41.

176 Id. at 41–42.

177 Id. at 42–44.

1. The Brady Standard

In Brady v. Maryland , the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."¹⁷⁸ The prosecutor's duty to provide favorable evidence includes impeachment evidence and exculpatory evidence.¹⁷⁹ The prosecutor's duty to disclose evidence includes both evidence in its own possession and any other "favorable evidence known to the others acting on the government's behalf in the case, including the police."¹⁸⁰ "[T]he duty to disclose such evidence is applicable even though there has been no request by the accused."¹⁸¹

178 Brady , 373 U.S. at 87, 83 S.Ct. 1194.

179 United States v. Bagley , 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

180 Kyles v. Whitley , 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

181 Strickler v. Greene , 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (citing United States v. Agurs , 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) ).

To prevail on a Brady claim, Petitioner must show: (1) the prosecutor suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material to guilt or punishment.¹⁸² "[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. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome."¹⁸³ The materiality analysis "is not a sufficiency of evidence test."¹⁸⁴ " ‘The question is not whether the defendant would more likely than not have received a different verdict with the evidence,’ or whether, ‘after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict.’ "¹⁸⁵ To succeed on a Brady claim, a defendant must "show[ ] that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict."¹⁸⁶ "A Brady violation is more likely to occur when the impeaching evidence ‘would seriously undermine the testimony of a key witness on an essential issue or there is no strong corroboration.’ "¹⁸⁷ "When there are a number of Brady violations, a court must analyze whether the cumulative effect of all such evidence suppressed by the government raises a reasonable probability that its disclosure would have produced a different result."¹⁸⁸

182 Miller v. Dretke , 431 F.3d 241, 245 (5th Cir. 2005) (citing Brady , 373 U.S. at 87, 83 S.Ct. 1194 ).

183 Bagley , 473 U.S. at 682, 105 S.Ct. 3375.

184 Kyles , 514 U.S. at 434, 115 S.Ct. 1555.

185 Mahler v. Kaylo , 537 F.3d 494, 500 (5th Cir. 2008) (quoting Kyles , 514 U.S. at 434–35, 115 S.Ct. 1555 ).

186 Kyles , 514 U.S. at 435, 115 S.Ct. 1555.

187 LaCaze v. Warden La. Corr. Inst. for Women , 645 F.3d 728, 736 (5th Cir. 2011) (quoting Rocha v. Thaler , 619 F.3d 387, 396 (5th Cir. 2010) ).

188 United States v. Sipe , 388 F.3d 471, 478 (5th Cir. 2004) (citing Kyles , 514 U.S. at 421–22, 115 S.Ct. 1555 ; United States v. Freeman , 164 F.3d 243, 248 (5th Cir. 1999) ).

"[A] Brady determination is inevitably a contextual inquiry, involving questions of both law and fact."¹⁸⁹ A Brady inquiry "is intimately intertwined with the trial proceedings: because the court must judge the effect of the evidence on the jury's verdict, the Brady decision can never be divorced from the narrative of the trial. In addition, the court must consider not simply the withheld evidence in isolation, but also the quantity and quality of other evidence in the record."¹⁹⁰ "[W]hen the undisclosed evidence is merely cumulative of other evidence [in the record], no Brady violation occurs."¹⁹¹ "Similarly, when the testimony of the witness who might have been impeached by the undisclosed evidence is strongly corroborated by additional evidence supporting a guilty verdict, the undisclosed evidence generally is not found to be material."¹⁹² Conversely, if the impeaching evidence "would seriously undermine the testimony of a key witness on an essential issue or there is no strong corroboration, the withheld evidence has been found to be material."¹⁹³

189 Id. at 479.

190 Id.

191 Id. at 478 (quoting Spence v. Johnson , 80 F.3d 989, 995 (5th Cir. 1996) ).

192 Id. (citing Wilson v. Whitley , 28 F.3d 433, 439 (5th Cir. 1994) ).

193 Id. (quoting United States v. Weintraub , 871 F.2d 1257, 1262 (5th Cir. 1989) ).

The state trial court found that Petitioner's Brady claims were meritless,¹⁹⁴ and the Louisiana Supreme Court denied relief without providing additional reasons.¹⁹⁵ When a Brady claim has been adjudicated on the merits by the state courts, a federal habeas court does not decide de novo whether a state prisoner has sufficiently proven a Brady violation.¹⁹⁶ Instead, the Court must determine "whether the state court's Brady determination resulted in a decision that is contrary to, or involved an unreasonable application of, clearly established federal law."¹⁹⁷ A state-court decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts."¹⁹⁸ A state-court decision is an unreasonable application of federal law "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case."¹⁹⁹

194 State Rec., Vol. XX of XXXIII, Order Denying Application for Post-Conviction Relief at p.1, Oct. 9, 2013.

195 State v. Neal , 14-0259 (La. 4/17/15); 168 So. 3d 391.

196 Dickson v. Quarterman , 462 F.3d 470, 474 (5th Cir. 2006) (quoting Yarborough v. Alvarado , 541 U.S. 652, 665, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ).

197 Id. (quoting Busby v. Dretke , 359 F.3d 708, 717 (5th Cir. 2004) ).

198 Megas v. Quarterman , 281 F. App'x 330, 333 (5th Cir. 2008) (quoting Williams , 529 U.S. at 413, 120 S.Ct. 1495 ).

199 Id.

2. Petitioner's Brady Claims

Petitioner argues that the State withheld the following six pieces of material evidence from the defense: (1) forensic reports showing that Zannie Neal's shoes could not be excluded as the source of the bloody shoeprint found at the scene;²⁰⁰ (2) a serology report indicating the possible presence of blood on Darby's shoe;²⁰¹ (3) an inconsistent prior statement of Darby;²⁰² (4) letters from Zannie Neal to Darby;²⁰³ (5) evidence regarding pending charges against witness Keinna Porter and an apparent plea deal;²⁰⁴ and (6) all of the initial and supplemental reports of the police officers that were prepared before trial.²⁰⁵ The State concedes that items four, five, and six were not disclosed, but argues that items one, two, and three were provided to the defense before trial.²⁰⁶ Regardless of whether the evidence was disclosed, the State asserts that the Brady claims are meritless because the allegedly suppressed evidence was immaterial.²⁰⁷

200 Rec. Doc. 4 at 24–27.

201 Id. at 27–29.

202 Id. at 29–39.

203 Id. at 39–41.

204 Id. at 41–42.

205 Id. at 42–44.

206 Rec. Doc. 12 at 10–24.

207 Id.

As explained in detail in the March 30, 2021 Order denying Petitioner's Motion for Partial Summary Judgment, the shoeprint analysis report, the serology report, and the inconsistent statement of Darby are material.²⁰⁸ The only evidence supporting the State's theory that both Petitioner and Zannie Neal entered the house was the testimony of Arthur Darby.²⁰⁹ Darby's testimony was also the primary evidence presented to establish that Petitioner was the shooter.²¹⁰ The defense's position was that Darby murdered the victims and then falsely implicated Petitioner to avoid the death penalty.²¹¹

208 Rec. Doc. 178.

209 State Rec., Vol. VI of XXXIII, Feb. 26, 1999 Trial Transcript at p. 214.

210 Neal , 2000-0674 at p.10; 796 So. 2d at 657–58 ("[T]he primary evidence that the defendant was the shooter is the trial testimony of the defendant's uncle, Arthur Darby.")

211 Id. ("The defendant alleges that Darby murdered the victims and then falsely implicated the defendant to avoid the death penalty; in support, the defendant notes that Darby admitted on cross-examination that he would ‘do anything and say anything’ to avoid the death penalty.").

Claudette Hurst—the only eyewitness who testified at Petitioner's trial—testified that she saw one perpetrator who she described as tall, thin, and dressed in black clothing.²¹² As the Louisiana Supreme Court recognized on direct appeal, the defense pointed to the following testimony to support Petitioner's claim that he remained in the car while Arthur Darby entered the house and killed the victims: "(1) Claudette Hurst described the shooter as a tall, thin person dressed in black clothing; (2) a deputy sheriff stated that ... [Petitioner] was wearing ‘a light brown pair of khaki pants’ [when he was arrested]; and (3) Darby admitted wearing a black sweater and blue jeans the night of the murder, described himself as ‘rather thin,’ and acknowledged that [Petitioner] was not ‘skinny’ or ‘thin.’ "²¹³ On direct appeal, the Louisiana Supreme Court rejected Petitioner's argument that the evidence was insufficient to prove his identity as the perpetrator, reasoning that "the jury heard Hurst's description of the offender and the witnesses’ testimony regarding the defendant's and Darby's clothing and physique, but, nevertheless, accepted Darby's testimony implicating the defendant."²¹⁴

212 State Rec., Vol. VI of XXXIII, Feb. 26, 1999 Trial Transcript at pp. 85, 106–07.

213 Id.

214 Id.

Evidence that would have impeached Darby's credibility and called into question his version of events was clearly material to the defense in this case. The State's theory that both Petitioner and Zannie Neal entered the house was supported only by the testimony of Arthur Darby. By contrast, Claudette Hurst testified that she only saw one intruder—an individual matching the physical description of Arthur Darby. Evidence that Zannie Neal left the bloody shoeprint found at the scene would have been relevant to the defense's theory that Petitioner remained in the car and did not shoot the victims.²¹⁵ Evidence regarding the possible presence of blood on Darby's shoe was material because it could have been used to contradict Darby's testimony at trial that he remained in the car the entire time. Finally, the prior inconsistent statements made by Darby, particularly the statement indicating that Darby did not see a gun when Petitioner exited the vehicle, could have been used to impeach Darby's trial testimony that Petitioner was carrying an AK-47 when he exited the vehicle. Considering the foregoing, the shoeprint analysis report, the serology report, and the inconsistent statement of Arthur Darby are material. Therefore, this inquiry focuses on whether the evidence was disclosed to the defense.

215 See Neal , 2000-0674 at p. 11; 796 So. 2d at 658.

3. The Factual Dispute Regarding Whether Evidence was Withheld

The state trial court found that the shoeprint analysis report, the serology report, and the inconsistent statement of Arthur Darby were disclosed to the defense. Of course, to succeed on a Brady claim, Petitioner must make the threshold showing that the State suppressed the evidence.²¹⁶ The evidence before the state trial court to support its finding was: (1) an unsigned letter from the prosecutor dated January 19, 1999; (2) a return receipt dated February 3, 1999, signed by defense attorney Ralph Barnett, which did not describe the contents of the mailing; and (3) a sworn declaration of Ralph Barnett stating that he did not recall receiving the reports but that if he had, he would have used them at trial.

216 Brady , 373 U.S. at 87, 83 S.Ct. 1194 ; Megas , 281 F. App'x at 334.

The January 19, 1999 letter (pictured below) is addressed to Mr. Barnett and indicates that the forensic and serology reports were enclosed.²¹⁷ The letter is on original letterhead, and it includes a signature block for an assistant district attorney who was assigned to the case, but the letter is not actually signed.²¹⁸

217 Rec. Doc. 255-3.

218 Id.

The U.S. Postal Service return receipt dated February 3, 1999 is signed by defense attorney Ralph Barnett but does not describe the contents of the mailing.²¹⁹ In an affidavit dated May 2, 2011, Mr. Barnett attests that the signature on the return receipt was his.²²⁰ In an affidavit dated August 16, 2011, Mr. Barnett attests that he did "not recall whether or not [he] received those reports from the District Attorney's Office. [He] would, however, expect that exculpatory reports of this kind would be disclosed in open court and not by mail. [He] also believe[d] that, if [he] had received these reports, [he] would have used them at trial to undermine the prosecution's case against Jarrell."²²¹

219 Rec. Doc. 112-9 at 1.

220 Rec. Doc. 112-10 at 1.

221 Rec. Doc. 4-1 at 68. In a third affidavit dated February 26, 2018, Mr. Barnett confirmed this prior statement. Rec. Doc. 105-3 ("As I have stated in a previous affidavit, I do not recall if I received any scientific reports in discovery in this case.").

The record regarding disclosure of the inconsistent statement Darby gave to the police is equally as vague. The state trial court found that the statement was disclosed, reasoning that "[t]he defendant has not demonstrated how disclosure was untimely or prejudicial to his case. The record indicates that defense counsel had each of the statements to which the defendant refers."²²² This factual finding appears to have been based on a discussion that happened on the record shortly before Darby testified. At trial, the State represented that it had a taped copy of a February 22, 1999 interview that Arthur Darby gave to police.²²³ When the trial court asked the prosecutor if the State was willing to give a copy of the tape to the defense, the prosecutor said "No, Your Honor," and represented to the trial court that the taped interview of Darby was "totally consistent" with an April 1, 1998 statement the defense had and therefore, the defense was not entitled to it.²²⁴ The trial judge asked for a copy of the statement to be put into the record for appellate review.²²⁵ The prosecutor promised that "if we can find the tape, we'll provide it to the court."²²⁶

222 State Rec., Vol. XX of XXXIII, Order Denying Application for Post-Conviction Relief at p. 2, Oct. 9, 2013.

223 State Rec., Vol. VI of XXXIII, Feb. 26, 1999 Trial Transcript at p. 194.

224 Id. at 197.

225 Id.

226 Id. at 197–98.

Subsequently, during a bench conference, the prosecutor gave the trial judge a copy of the taped statement for in camera inspection.²²⁷ The tape is not mentioned again in the trial transcript. However, a minute entry of the state trial court stated that the court reviewed the tape in chambers and ruled that there were two Brady statements on the tape.²²⁸ Nevertheless, the record does not indicate that the taped statements were ever provided to defense counsel, and it does not appear that there was any evidence before the state court to support its factual finding that the taped statement was ever provided to defense counsel.

227 Id. at 200–01.

228 State Rec., Vol. I of XXXIII, Minute Entry, Feb. 26, 1999.

In the initial response filed in this case, the State conceded that "the court's statement that ‘defense counsel had each of the statements to which the defendant refers’ appears to be error."²²⁹ However, in the statement of material facts submitted in opposition to the motion for partial summary judgment, the State changed course and argued that "the record suggests at least portions of Mr. Darby's second statement were, in fact, disclosed."²³⁰ The State asserted that "Petitioner's trial counsel specifically referenced that second audio recorded statement given by Mr. Darby and, using the contents of that statement, impeached Mr. Darby with a prior inconsistency from that statement."²³¹

229 Rec. Doc. 12 at 18.

230 Rec. Doc. 269-1 at 7.

231 Id.

Considering the inconsistencies in the record, the scant evidence in the record to support a finding that the documents were disclosed to the defense, the Louisiana Supreme Court's finding on direct appeal that there was insufficient evidence in the record to determine whether the evidence was disclosed to the defense before trial, and the trial court's failure to hold an evidentiary hearing to develop the record on this issue, the Court ordered a limited evidentiary hearing on the issue of whether the shoeprint analysis report, the serology report, and the prior statement of Darby were disclosed to the defense before trial.²³²

232 See Rec. Doc. 178.

4. The June 18, 2021 Evidentiary Hearing

The hearing was held on June 18, 2021. Petitioner's trial counsel, Ralph Barnett, was the sole witness called by Petitioner at the hearing. When Mr. Barnett represented Petitioner at his capital trial in February 1999, he had a large volume of criminal cases in Jefferson Parish, Plaquemines Parish, and Orleans Parish.²³³ He defended over twenty capital cases over the course of his career.²³⁴ However, Petitioner's case was the only capital case he ever defended that had bifurcated guilt and penalty phases.²³⁵

233 Rec. Doc. 266 at 8.

234 Id. at 9.

235 Id.

Mr. Barnett was hired by Petitioner's mother.²³⁶ He did not have co-counsel, an investigator, or a paralegal assisting him during the trial.²³⁷ He had a solo practice for his entire career.²³⁸ Mr. Barnett maintained a file on Petitioner's case after the trial, but he believed the file was damaged during Hurricane Katrina and later destroyed.²³⁹ He did not maintain a computer file.²⁴⁰

236 Id.

237 Id. at 10.

238 Id.

239 Id. at 12.

240 Id.

Mr. Barnett spoke to the ADA about the possibility of Petitioner receiving a life sentence, but he did not receive an offer from the State.²⁴¹ Mr. Barnett testified that his goal was for Petitioner to receive a life sentence.²⁴² He did not believe that Petitioner deserved the death penalty.²⁴³

241 Id. at 13.

242 Id. at 14.

243 Id.

Mr. Barnett did not remember receiving the serology report indicating the possible presence of blood on Arthur Darby's shoe.²⁴⁴ Mr. Barnett testified that if he had the evidence, he should have used it, and it was "a big mistake" not to use the evidence.²⁴⁵

244 Id.

245 Id. at 14–15.

Mr. Barnett acknowledged that his signature was on the U.S. Postal Service return receipt.²⁴⁶ However, Mr. Barnett could not say for certain whether the return receipt was related to Petitioner's case or to another case he was handling at the time.²⁴⁷ The letter was dated January 19, 1999, and the return receipt was dated February 3, 1999, fifteen days later.²⁴⁸ Mr. Barnett testified that the ADA had a duty to place all discovery in the court record.²⁴⁹ Mr. Barnett testified that the DA's office sent most correspondence to him by certified mail.²⁵⁰ However, he typically picked up discovery from the DA's office.²⁵¹

246 Id. at 17.

247 Id. at 19.

248 Id.

249 Id. at 16.

250 Id. at 17.

251 Id.

Terry Boudreaux was the sole witness called by the State at the evidentiary hearing. Terry Boudreaux was an assistant district attorney in the Jefferson Parish District Attorney's Office for over thirty years, and he served as a supervisor of the research and appeals department.²⁵² He participated in the appellate litigation concerning Petitioner.²⁵³ He personally inspected the State's felony file in this case.²⁵⁴ He located the January 19, 1999 letter and the certified mail return receipt in the felony file after briefs were submitted to the Louisiana Supreme Court on direct appeal.²⁵⁵ The January 19, 1999 letter appears on original letterhead and is unsigned.²⁵⁶ Mr. Boudreaux testified that he found the letter and the return receipt on two different days.²⁵⁷ According to Mr. Boudreaux, the documents were not together in the felony file, and they may have been in different boxes.²⁵⁸

252 Id. at 70, 75.

253 Id. at 71.

254 Id.

255 Id.

256 Id. at 74–75.

257 Id. at 90.

258 Id.

5. Resolution of the Factual Dispute

After the June 18, 2021 evidentiary hearing, the Court is left with an equally unclear record regarding disclosure of the shoeprint analysis report, the serology report, and the inconsistent statement of Arthur Darby. Nevertheless, it is Petitioner's burden to demonstrate that the prosecutor did in fact suppress the evidence.²⁵⁹

259 Banks v. Thaler , 583 F.3d 295, 312 (5th Cir. 2009) (quoting United States v. Edwards , 442 F.3d 258, 267 n.9 (5th Cir. 2006) ("[T]he part[y] alleging a Brady violation[ ] ha[s] the burden of establishing all three prongs of the Brady test")).

Petitioner primarily relies on inconsistencies in the record to attempt to meet this burden. Petitioner notes that other pieces of evidence mentioned in the January 19, 1999 letter were turned over to the defense on other occasions and in open court. Specifically, the crime scene sketches were turned over to the defense on at least two prior occasions.²⁶⁰ Petitioner questions why these items were re-sent in the January 19, 1999 letter since they had already been disclosed. Petitioner also notes that Mr. Barnett was handling over 100 other cases around this time. Therefore, Petitioner posits that the return receipt could have been related to any of those cases. Additionally, Petitioner points out that when the discovery was provided to Zannie Neal's attorney in May 1999 (after Petitioner's trial), the letter was sent to defense counsel and filed in the court record. He argues that the office would make a very good record when documents were actually disclosed.

260 See Rec. Doc. 211-10 (July 17, 1998 Pretrial Hearing Transcript); Rec. Doc. 211-11 (Dec. 17, 1998 Pretrial Hearing Transcript).

The Court agrees that the record is murky at best. Nevertheless, there are portions of the record suggesting that Petitioner's counsel was aware of the serology and shoeprint analysis reports. Although the reports were not offered into evidence, the shoeprint analysis and serology testing are mentioned, at least in passing, during Petitioner's trial. Testimony regarding the shoeprint was offered by Detective Ralph Sacks. On direct examination, Detective Sacks testified that the investigators recovered "a tile on the floor that had a bloody footprint on it."²⁶¹ Detective Sacks also identified a photograph of the shoeprint in question and pointed out to the jury where the shoeprint was located on a crime scene sketch.²⁶² Detective Sacks testified that the shoeprint was important because if the investigators recover a suspect's shoe they would try "to match the shoe with the print that [they] found on the scene."²⁶³ Mr. Barnett did not object to this testimony. Mr. Barnett also asked Detective Sacks about the shoeprint on cross-examination.²⁶⁴ Mr. Barnett asked Detective Sacks if he knew what happened to the tile, and Detective Sacks responded that he thought "some analysis was done on it."²⁶⁵ Mr. Barnett asked what the analysis revealed, and Detective Sacks testified that he thought "it came back negative."²⁶⁶ Detective Sacks clarified that forensic testing could not match the shoeprint "to an actual shoe."²⁶⁷

261 State Rec., Vol. VI of XXXIII, Feb. 26, 1999 Trial Transcript at p. 144.

262 Id. at 147–48.

263 Id.

264 Id. at 154.

265 Id.

266 Id.

267 Id. at 154–55.

Limited testimony regarding serology was also offered by Detective Steve Buras. On direct examination, Detective Buras testified that the investigators "requested some serology on certain items that [were] collected from the defendants, the victims and pieces of evidence that were located on the various scenes."²⁶⁸ The prosecutor did not ask any follow-up questions regarding serology testing and immediately turned the questioning to gunshot residue.²⁶⁹ This is the only time serology testing was mentioned during trial, and Detective Buras did not testify to the results of the serology testing. Nevertheless, Mr. Barnett did not object to the line of questioning, request a sidebar, or request a mistrial. Therefore, the trial record supports a finding that Mr. Barnett was at least aware that investigating officials performed shoeprint analysis and serology testing in this case.

268 State Rec., Vol. VI of XXXIII, Feb. 27, 1999 Trial Transcript at p. 17.

269 Id.

Despite being afforded an opportunity to clarify the record through an evidentiary hearing, Petitioner has failed to show that the State suppressed the shoeprint analysis report, the serology report, and the inconsistent statement of Arthur Darby. The only witness Petitioner called was Ralph Barnett, and his testimony on this issue is, at best, an equipoise. He did not know whether the documents were turned over. He simply could not recall one way or another. Despite the numerous inconsistencies in the record outlined above, the Court is constrained to conclude, as the state trial court did, that Petitioner has not satisfied his burden of establishing the threshold element of the Brady claim. "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold."²⁷⁰ Considering the stringent AEDPA standards applicable here, the Court upholds the state trial court's factual finding that these items were disclosed to the defense.²⁷¹ Therefore, the Brady claims related to the shoeprint analysis report, the serology report, and the prior statement of Arthur Darby, fail on the first element.

270 Schriro v. Landrigan , 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (internal citation omitted).

271 See Vasquez v. Thaler , 505 F. App'x 319, 331 (5th Cir. 2013) ("As the state habeas court and the district court correctly observed, this made it impossible to ascertain whether the prosecution did, in fact, suppress the alleged evidence. This alone was sufficient to deny Vasquez's Brady claim and Vasquez has not called that conclusion into doubt."); Burks v. Johnson , 207 F.3d 658, at *5 (5th Cir. 2000) ("We believe that the state habeas court's determination that this information was disclosed was reasonable. One of the prosecutors testified to telling at least one of Burks's lawyers about the nurses’ statements. Burks's lawyers, on the other hand, all contend that they never received this information. Thus, this is a credibility issue, and we cannot conclude that the state court's reliance on the prosecutor's testimony was unreasonable. Or, stated differently, although Burks's attorneys deny receiving this information, their denial does not constitute clear and convincing rebuttal evidence that can set aside a credibility determination made by the state court.").

6. The Remaining Brady Arguments

Considering the foregoing conclusion, only three pieces of alleged Brady material remain in question. First, a January 1999 letter from Zannie Neal to Arthur Darby indicating that the pair had a close relationship.²⁷² Second, the police record of witness Keinna Porter indicating that she had a prior arrest, which contradicted the prosecutor's statement during Petitioner's trial that she had no criminal history.²⁷³ Third, supplemental police reports allegedly "composed [to] fit with the State's theory of the crime rather than with the evidence."²⁷⁴ There is no dispute that these items were not disclosed to the defense before trial.²⁷⁵ Nevertheless, as discussed in the March 30, 2021 Order denying Petitioner's Motion for Partial Summary Judgement, this evidence is not material.²⁷⁶

272 Rec. Doc. 4 at 39–40; Rec. Doc. 4-1 at 149 ("That's why I was thinking to myself that man if we both make it out of here together. I'm coming with you to Texas so I could have a brand new start. Because really my [ni**a] you bout the only person I know period that's on the same level with me. Then you like a couple of level's above me. Because ain't nobody else really feeling me.").

273 Rec. Doc. 4 at 41–42.

274 Rec. Doc. 4 at 42–44.

275 State Rec., Vol. XX of XXXIII, Order Denying Application for Post-Conviction Relief at p. 2, Oct. 9, 2013.

276 Rec. Doc. 178.

"When there are a number of Brady violations, a court must analyze whether the cumulative effect of all such evidence suppressed by the government raises a reasonable probability that its disclosure would have produced a different result."²⁷⁷ Even when viewed cumulatively, in light of the evidence presented at trial, Petitioner has not demonstrated that there is a reasonable probability that the result of the proceeding would have been different if this evidence was disclosed to the defense. Therefore, the state courts’ denial of relief on this issue was not contrary to, or an unreasonable application of, clearly established federal law. Accordingly, the Court concludes that Petitioner is not entitled to relief on the Brady claim.

277 Sipe , 388 F.3d at 478.

B. The Ineffective Assistance of Counsel Claims

Petitioner raises numerous ineffective assistance of counsel claims.²⁷⁸ As an alternative to Petitioner's claim that the State suppressed the shoeprint analysis report and the serology report, Petitioner argues that if the evidence was disclosed to the defense, his counsel performed ineffectively by failing to test and present this evidence at trial.²⁷⁹ These claims are addressed under the standard set forth by the Supreme Court in Strickland v. Washington ²⁸⁰ and its progeny. Relatedly, Petitioner also raises a claim under Martinez v. Ryan ,²⁸¹ alleging that both trial and post-conviction counsel were ineffective for failing to conduct DNA testing on the thread created by the JPSO Crime lab to preserve blood evidence recovered from Darby's left shoe.²⁸²

278 See generally Rec. Docs. 4, 54, 105.

279 Rec. Doc. 4 at 24 ("Indeed, Arthur Darby's testimony was the only evidence that identified Jarrell Neal as the person who allegedly, with a[n AK-47] in hand, entered the scene of the crime, and, with specific intent, killed the victims. However, due to a combination of Brady violations, Napue violations, and the ineffectiveness of trial counsel, the jury rendered its verdicts without hearing critical evidence that Arthur Darby lacked credibility and that his self-interested testimony was plainly unreliable evidence."); Id. at 29 ("This blood evidence is, therefore, critical exculpatory and impeachment evidence, and defense counsel was ineffective in failing to test and present this evidence at Jarrell Neal's trial.").

280 Strickland , 466 U.S. at 668, 104 S.Ct. 2052.

281 Martinez , 566 U.S. at 1, 132 S.Ct. 1309.

282 Rec. Doc. 105 at 10–12.

1. The Strickland Standard

To succeed on an ineffective assistance of counsel claim, a petitioner must demonstrate both that his counsel's performance was deficient and that the deficient performance prejudiced his defense.²⁸³ If a court finds that a petitioner fails on either of these two prongs, it may dispose of the ineffective assistance claim without addressing the other prong.²⁸⁴ To satisfy the deficient performance prong, a petitioner "must show that counsel's representation fell below an objective standard of reasonableness."²⁸⁵ A petitioner must overcome a strong presumption that the counsel's conduct falls within a wide range of reasonable representation.²⁸⁶ A petitioner must show that the conduct was so egregious that it failed to meet the constitutional minimum guaranteed by the Sixth Amendment.²⁸⁷ Courts addressing this prong of the test for ineffective assistance of counsel must consider the reasonableness of counsel's actions in light of all the circumstances.²⁸⁸ To prevail on the actual prejudice prong, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."²⁸⁹ "A reasonable probability is a probability sufficient to undermine confidence in the outcome."²⁹⁰ "A reasonable probability means a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result."²⁹¹

283 Strickland , 466 U.S. at 697, 104 S.Ct. 2052.

284 Id.

285 Id. at 688, 104 S.Ct. 2052.

286 See Crockett v. McCotter , 796 F.2d 787, 791 (5th Cir. 1986) ; Mattheson v. King , 751 F.2d 1432, 1441 (5th Cir. 1985).

287 See Styron v. Johnson , 262 F.3d 438, 450 (5th Cir. 2001).

288 See Strickland , 466 U.S. at 690, 104 S.Ct. 2052.

289 Id. at 694, 104 S.Ct. 2052.

290 Id.

291 Shinn , 141 S. Ct. at 523 (quoting Cullen v. Pinholster , 563 U.S. 170, 189, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) ).

In considering Petitioner's ineffective assistance claims on federal habeas corpus review that are repetitive of claims already made to a state court, the central question "is not whether a federal court believes the state court's determination under Strickland was incorrect but whether [it] was unreasonable—a substantially higher threshold."²⁹² In addition, "because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard."²⁹³ Thus, this standard is considered "doubly deferential" on habeas corpus review.²⁹⁴

292 Knowles v. Mirzayance , 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009) (quoting Schriro , 550 U.S. at 478, 127 S.Ct. 1933 ) (internal quotation marks omitted).

293 Id.

294 Id.

2. Failure to Use the Shoeprint Analysis Report and the Serology Report

As an alternative to his claim that the State suppressed the shoeprint analysis report and the serology report, Petitioner contends that he is entitled to habeas relief because even if the reports were provided, defense counsel would have been ineffective if he had the reports and failed to use them at trial.²⁹⁵ Petitioner also argues that his trial counsel had a duty to consult with independent forensic experts regarding the shoeprint analysis and the serology report, both to potentially present in the defense's case and to properly cross-examine the State's witnesses.²⁹⁶

295 Rec. Doc. 4 at 24, 29; Rec. Doc. 166-1 at 25.

296 Id.

Petitioner's claim is multifaceted. He asserts that his counsel performed ineffectively by failing to introduce the shoeprint analysis report and serology report, failing to further investigate the evidence, and failing to consult with experts to develop the record on these issues. Fundamentally, Petitioner's argument is that his counsel failed to challenge the testimony of the State's key witness, Arthur Darby, with available evidence or with evidence that could have been identified through further investigation. The failure to investigate claim is only partially exhausted. Before the state trial court, Petitioner argued that his counsel should have consulted with experts.²⁹⁷ However, in 2019, while this federal habeas petition was pending, an expert retained by Petitioner's counsel conducted DNA testing on a thread made from the blood debris evidence recovered from the left Nike brand tennis shoe, which the JPSO chain of custody report identifies as item 13 recovered from Arthur Darby.²⁹⁸ That testing showed that it is "approximately 100 quintillion times more likely [ ] the DNA originated from Greg Vickers than if the DNA originated from an unknown individual."²⁹⁹

297 State Rec., Vol. XIII of XXXIII, Amended Supplemental Petition for Post-Conviction Relief and Motion for Evidentiary Hearing at pp. 112–17, Sept. 23, 2011.

298 Rec. Doc. 137-1 at 4 (March 31, 1998 Chain of Custody Form); Rec. Doc. 105-5 (DNA Report).

299 Id. at 14.

Before turning to the unexhausted claim, the Court begins by examining the ineffective assistance of counsel claim that was presented to the state courts.³⁰⁰ With respect to the shoeprint analysis, Petitioner asserted that defense counsel should have "taken the very basic investigatory steps of reviewing the physical evidence and the crime scene photos," which show a bloody shoeprint on the tile, and consulted with a forensic scientist to compare the print to the shoes of the three suspects.³⁰¹ With respect to the serology, Petitioner argued that his counsel should have tested Arthur Darby's shoe for the presence of blood.³⁰² During the state post-conviction proceedings, Petitioner presented an affidavit of Ron Singer, the Technical and Administrative Director of the Tarrant County Medical Examiner's Office, who tested the shoes for blood and found that blood was in fact present on the shoes.³⁰³

300 State Rec., Vol. XIII of XXXIII, Amended Supplemental Petition for Post-Conviction Relief and Motion for Evidentiary Hearing at pp. 112–17, Sept. 23, 2011.

301 Id. at 112–13.

302 Id. at 116–17.

303 Id. ; Rec. Doc. 4-1 at 94.

The state trial court rejected this claim finding:

Next, the defendant makes many claims for ineffective assistance of counsel with regard to defense counsel's investigation and cross examination of witnesses. These claims have no merit. His investigation and examination of witnesses were strategic choices which do not constitute ineffective assistance of counsel. Furthermore, they would not have had any effect on the outcome given that the record establishes that the defendant was involved in the commission of the offense along with his co-defendants including attempting to kill police officers with a high powered assault rifle while fleeing the scene.

...

The defendant also asserts that his counsel was deficient for failing to consult with forensic experts, conduct forensic tests as well as consulting a forensic pathologist. These claims are without merit. Counsel's decisions were trial strategies which do not constitute ineffective assistance of counsel. Furthermore, the defendant has not shown that he was prejudiced by counsel's decisions regarding experts. Defendant's conviction would remain unchanged when considered in light of his role as a principal.³⁰⁴

304 State Rec., Vol. XX of XXXIII, Order Denying Application for Post-Conviction Relief at pp. 3–4, Oct. 9, 2013.

The trial court found that these decisions were sound trial strategies. This Court cannot upset that finding unless it was contrary to or an unreasonable application of clearly established federal law. "Where, as here, a state court correctly identifies the governing clearly established law, a state court decision may nevertheless be ‘an unreasonable application’ of that law if it ‘applies [the law] unreasonably to the facts of a particular prisoner's case."³⁰⁵ To be considered unreasonable the state court decision must be "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement."³⁰⁶

305 Hughes , 7 F.4th at 387 (quoting Williams , 529 U.S. at 407–08, 120 S.Ct. 1495 ).

306 Richter , 562 U.S. at 103, 131 S.Ct. 770. AEDPA "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents." Id. at 102, 131 S.Ct. 770.

"[A] conscious and informed decision on trial tactics and strategy cannot be the basis of constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness."³⁰⁷ Courts should defer "to counsel's judgment about the presentation and questioning of witnesses when such choices are the result of a ‘conscious and informed decision on trial tactics.’ "³⁰⁸ "At the same time, however, courts are ‘not required to condone unreasonable decisions parading under the umbrella of strategy, or to fabricate tactical decisions on behalf of counsel when it appears on the face of the record that counsel made no strategic decision at all.’ "³⁰⁹ "[C]ourts may not indulge ‘post hoc rationalization’ for counsel's decisionmaking that contradicts the available evidence of counsel's actions ...."³¹⁰

307 Richards v. Quarterman , 566 F.3d 553, 564 (5th Cir. 2009) (cleaned up).

308 Pape v. Thaler , 645 F.3d 281, 291 (5th Cir. 2011) (quoting Cotton v. Cockrell , 343 F.3d 746, 752–53 (5th Cir. 2003) ).

309 Richards , 566 F.3d at 564 (quoting Moore v. Johnson , 194 F.3d 586, 604 (5th Cir. 1999) ).

310 Richter , 562 U.S. at 109, 131 S.Ct. 770 (internal citations omitted).

Two recent decisions by the United States Court of Appeal for the Fifth Circuit are instructive. In Hughes v. Vannoy , the Fifth Circuit affirmed a federal district court order granting habeas relief on a second-degree murder conviction.³¹¹ The petitioner, George Hughes, was convicted of murdering his adopted daughter's boyfriend, Drew Hawkins.³¹² During his trial, Hughes testified that the men were in an argument and the gun fired accidentally when Hawkins pulled on the gun and the two men collided.³¹³ Hughes's testimony was contradicted by a witness, Sandra Allen, who testified that she watched the fight from outside her apartment across the street and saw Hawkins backing away from Hughes with his hands raised at the moment the gun fired.³¹⁴ The Fifth Circuit found that defense counsel performed deficiently in failing to conduct a pretrial interview of Allen, in failing to discover a television interview from the night of the shooting wherein Allen stated she was inside her house when she heard the shots, and in failing to discover Allen's roommate who would have testified that Allen was inside apartment at time of the shooting.³¹⁵ The court pointed to defense counsel's admission "that there was no strategy behind his decision not to even attempt to interview Allen."³¹⁶ "Given the importance of Allen's testimony to the State's case and the value of [the roommate's] impeachment testimony," the Fifth Circuit found that no fairminded jurist could conclude that the failure to introduce the roommate's testimony would not have undermined confidence in the outcome of Hughes's trial.³¹⁷ In Rhodes v. Vannoy , the petitioner was convicted of armed robbery and attempted second-degree murder based almost exclusively on the testimony of the victim who had identified the petitioner as the shooter in a photo lineup.³¹⁸ The identification occurred six days after the shooting, the victim had recently undergone surgery, and he "was under the influence of pain medication and the lingering effects of general anesthesia."³¹⁹ On cross-examination, the victim denied that he was under the influence of any medication.³²⁰ Defense counsel was in possession of medical records documenting that he had received pain medication that day, but she did not use those records to impeach the victim's statement.³²¹

311 Hughes , 7 F.4th at 392.

312 Id. at 383.

313 Id.

314 Id.

315 Id. at 391.

316 Id. at 388.

317 Id. at 392.

318 751 F. App'x 524, 525 (5th Cir. 2018). Although Rhodes is an unpublished opinion, the facts of the case are instructive here.

319 Id.

320 Id.

321 Id.

The Fifth Circuit held that it was not a reasonable trial strategy for defense counsel to ask the victim about his use of pain medications at the time of the identification, but then not impeach him with available medical records after the victim denied being on any medication.³²² This "resulted in a situation where [the witness] was allowed to falsely bolster the credibility of the identification with impunity."³²³ The Fifth Circuit found that the record did not support a conclusion that defense "counsel might have been tactically limiting the scope of her cross-examination, and that her failures ‘cannot be accurately described as ‘sound trial strategy.’ "³²⁴ Considering (1) the State's reliance at trial on the victim's identification of the defendant, (2) the fact that the defendant was "convicted almost entirely on the basis of" the victim's identification, and (3) the inconsistencies in the other evidence presented at trial, the Fifth Circuit concluded that defense counsel's failure to impeach the victim with the available contrary medical records prejudiced the defense.³²⁵

322 Id. at 530.

323 Id.

324 Id.

325 Id.

This case is similar in many respects. The only evidence supporting the State's theory that both Petitioner and Zannie Neal entered the house was the testimony of Arthur Darby.³²⁶ Arthur Darby's testimony was also the primary evidence presented to establish that Petitioner was the shooter.³²⁷ The defense's position was that Darby murdered the victims and then falsely implicated Petitioner to avoid the death penalty.³²⁸ Claudette Hurst—the only eyewitness who testified at Petitioner's trial—testified that she saw one perpetrator who she described as tall, thin, and dressed in black clothing.³²⁹ As the Louisiana Supreme Court recognized on direct appeal, the defense pointed to the following testimony to support Petitioner's claim that he remained in the car while Zannie Neal or Arthur Darby entered the house and killed the victims: "(1) Claudette Hurst described the shooter as a tall, thin person dressed in black clothing; (2) a deputy sheriff stated that when arrested [Petitioner] was wearing ‘a light brown pair of khaki pants’; and (3) Darby admitted wearing a black sweater and blue jeans the night of the murder, described himself as ‘rather thin,’ and acknowledged that [Petitioner] was not ‘skinny’ or ‘thin.’ "³³⁰ The Louisiana Supreme Court rejected Petitioner's argument that the evidence was insufficient to prove his identity as the perpetrator, reasoning that "the jury heard Hurst's description of the offender and the witnesses’ testimony regarding the defendant's and Darby's clothing and physique, but, nevertheless, accepted Darby's testimony implicating the defendant."³³¹

326 State Rec., Vol. VI of XXXIII, Feb. 26, 1999 Trial Transcript at p. 214.

327 Neal , 2000-0674 at p. 10; 796 So. 2d at 657–58 ("[T]he primary evidence that the defendant was the shooter is the trial testimony of the defendant's uncle, Arthur Darby.")

328 Id. ("The defendant alleges that Darby murdered the victims and then falsely implicated the defendant to avoid the death penalty; in support, the defendant notes that Darby admitted on cross-examination that he would "do anything and say anything" to avoid the death penalty.").

329 State Rec., Vol. VI of XXXIII, Feb. 26, 1999 Trial Transcript at pp. 85, 106–07.

330 Neal , 2000-0674 at p. 11; 796 So. 2d at 658.

331 Id.

Evidence that would have impeached Darby's credibility and called into question his version of events was clearly material to the defense. The State's theory that both Petitioner and Zannie Neal entered the house was supported only by the testimony of Arthur Darby. By contrast, Claudette Hurst testified that she only saw one intruder—an individual matching the physical description of Arthur Darby. Evidence that Zannie Neal left the bloody shoeprint found at the scene would have been relevant to the defense's theory that Petitioner remained in the car and did not shoot the victims.³³²

332 Id.

Similarly, the serology report could have been used to impeach Arthur Darby's testimony. At trial, Darby stated that he waited in the car while Petitioner and Zannie Neal went inside the house.³³³ Evidence regarding the possible presence of blood on Darby's shoe would have damaged his credibility and strengthened the defense's argument that Darby was responsible for the shooting. Evidence that Darby had blood on his shoe was favorable to the defense because it would have contradicted Darby's testimony at trial that he remained in the car the entire time.³³⁴

333 State Rec., Vol. VI of XXXIII, Feb. 26, 1999 Trial Transcript at p. 214.

334 The December 8, 1998 Report notes the "possible presence of blood." Rec. Doc. 211-1 at 2. In the state post-conviction proceedings, the affidavit of Ron Singer confirmed that blood was in fact present on Arthur Darby's shoes. Rec. Doc. 4-1 at 94. The affidavit was presented to the state courts in the post-conviction proceedings.

The state trial court found that the decision not to use this evidence was a sound trial strategy.³³⁵ The state court did not provide any reasoning to support this conclusion. Conceivably, there could have been a strategy for not raising the presence of blood on Arthur Darby's shoe. Darby testified that when he was apprehended the police dogs bit him "on the right thigh[,] on the back and on the arm."³³⁶ Following his apprehension, Darby was taken to the hospital. Although Darby did not testify as to whether he was bleeding from these bites, it is conceivable that he could have gotten blood on his shoe from the apprehension. Considering that the blood could have come from the police apprehension, it could have been a trial strategy not to ask about the presence of blood on Arthur Darby's shoe. Additionally, the serology report indicated the possible presence of blood on Petitioner's shoes. It is conceivable that counsel may not have wanted to question Darby about the report because it also showed the presence of blood on Petitioner's shoe. Nevertheless, Darby also testified that the police "whooped [Petitioner] pretty bad" leaving Petitioner bruised and bloody.³³⁷ Therefore, it is equally conceivable that the blood on Petitioner's shoe could have come from his arrest.

335 State Rec., Vol. XX of XXXIII, Order Denying Application for Post-Conviction Relief at p. 4, Oct. 9, 2013.

336 State Rec., Vol. VI of XXXIII, Feb. 26, 1999 Trial Transcript at p. 230.

337 Id. at 231.

A finding that counsel's decision was a reasonable trial strategy is contradicted by the statements of Petitioner's trial counsel himself. Ralph Barnett admitted that there was no strategy behind his decision not to use the reports to impeach Arthur Darby. In an August 16, 2011 declaration, which was submitted to the state courts during the post-conviction proceedings, Mr. Barnett stated that he "did not review the physical or forensic evidence in the case," and he "did not use any experts in preparation for trial."³³⁸ Mr. Barnett also stated that he did not recall receiving the shoeprint analysis report or the serology report before trial, but if he had received them, he "would have used them at trial to undermine the prosecution's case against Jarrell."³³⁹ Considering Mr. Barnett's statements, the state trial court's finding that the failure to use these reports was the result of some "strategy" is unreasonable on this record.

338 Rec. Doc. 4-1 at 67.

339 Id. at 68. Moreover, during the June 18, 2021 evidentiary hearing, Mr. Barnett testified that if he had the evidence, he should have used it, and it was "a big mistake" not to use the evidence. He made clear that he would have used the evidence if he had it. However, the Court does not need to consider evidence outside the record presented to the state court to find the state trial court's determination unreasonable.

The record shows that Mr. Barnett did little to prepare in advance for this trial. He did not consult with an investigator, mitigation specialist, or any experts.³⁴⁰ He waived co-counsel, even after the trial judge offered to appoint a second chair through the Indigent Defender's office.³⁴¹ Mr. Barnett waived an opening statement,³⁴² and rested the defense without presenting any evidence.³⁴³ Mr. Barnett's declaration, which was properly submitted in the state court post-conviction proceedings, is consistent with Mr. Barnett's overall failure to prepare for the guilt phase of Petitioner's case. The record establishes that Mr. Barnett's failure to use these reports was not the result of any trial strategy. Therefore, the state trial court's determination that the decision not to use this evidence or to consult any experts regarding the shoeprint analysis and serology report was a trial strategy was unsupported by the record and unreasonable in light of the evidence before the trial court. Because there is no "reasonable argument that [Mr. Barnett] satisfied Strickland ’s deferential standard" of adequate performance, Mr. Barnett's performance was deficient and the state court's determination to the contrary was an unreasonable application of Strickland . ³⁴⁴ Petitioner must also establish prejudice by showing "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."³⁴⁵ The state trial court found that defense counsel's failure to present the shoeprint analysis report and serology report was not prejudicial because Petitioner's conviction would remain unchanged when considered in light of his role as a principal.³⁴⁶ The State elaborates on this argument in these proceedings. The State asserts that the shoeprint analysis report—showing that Zannie Neal could not be excluded as the source of the bloody shoeprint—fits within the State's theory of the case that two intruders entered the residence on the night of the murders—Petitioner and Zannie Neal.³⁴⁷ Similarly, the State asserts that the serology report—finding the "possible presence of blood" on Arthur Darby's shoe—is not exculpatory because the same report noted the possible presence of blood on Petitioner's shoe.³⁴⁸ The Court acknowledges that the evidence is not per se "exculpatory." Of course, Petitioner could have been convicted for his involvement even if he was not the triggerman. In fact, the State's key witness, Arthur Darby, pleaded guilty to manslaughter and was sentenced to a term of twenty years imprisonment for his role in the shootings.

340 Rec. Doc. 4-1 at 67.

341 State Rec., Vol. I of XXXIII, Feb. 23, 1999 Trial Transcript at p. 11.

342 State Rec., Vol. V of XXXIII, Feb. 25, 1999 Trial Transcript at p. 28.

343 State Rec., Vol. VI of XXXIII, Feb. 27, 1999 Trial Transcript at p. 95.

344 Hughes , 7 F.4th at 390 (quoting Richter , 562 U.S. at 105, 131 S.Ct. 770 ).

345 Strickland , 466 U.S. at 694, 104 S.Ct. 2052.

346 State Rec., Vol. XX of XXXIII, Order Denying Application for Post-Conviction Relief at p. 4, Oct. 9, 2013.

347 Rec. Doc. 12 at 12–13.

348 Id. at 14–15.

Nevertheless, the law does not require that the evidence be exculpatory or completely absolve the petitioner of any criminal wrongdoing. The role of a federal habeas court is not to adjudicate a petitioner's guilt or innocence.³⁴⁹ For this reason, "[f]ederal habeas review of state convictions has traditionally been limited to claims of constitutional violations occurring in the course of the underlying state criminal proceedings."³⁵⁰ A conviction cannot stand if it results "specifically and directly from the consequences of [the denial of] the right to effective counsel in violation of ... the Sixth Amendment to the United States Constitution."³⁵¹ The law requires the petitioner to show that but for counsel's unprofessional errors, the result of the proceeding would have been different.³⁵²

349 Herrera , 506 U.S. at 416, 113 S.Ct. 853 ("[I]n state criminal proceedings the trial is the paramount event for determining the guilt or innocence of the defendant.").

350 Id.

351 Young , 356 F.3d at 629.

352 Strickland , 466 U.S. at 694, 104 S.Ct. 2052.

To show prejudice, this Court need not look further than the Louisiana Supreme Court's discussion of the case on direct appeal. Petitioner was convicted of first-degree murder and was sentenced to death. As the Louisiana Supreme Court stated on direct appeal, to convict Petitioner of first-degree murder and impose a death sentence, Louisiana law required the State to prove that Petitioner: (1) had the specific intent to kill or inflict great bodily harm during the perpetration or attempted perpetration of an aggravated burglary; (2) had the specific intent to kill or inflict great bodily harm while engaged in the attempted distribution, exchange, sale or purchase of a controlled dangerous substance; or (3) had the specific intent to kill or to inflict great bodily harm upon more than one person.³⁵³ The jurors found each of these aggravating circumstances present in this case.³⁵⁴

353 Neal , 2000-0674 at p. 10; 796 So. 2d at 657 ; La. Rev. Stat. § 14:30 (1993).

354 State Rec., Vol. XXI of XXXIII, State v. Neal , 00-0674, Unpublished Appendix at p. 65 (La. 6/29/2001).

The State relied primarily on the testimony of Arthur Darby to prove each of these three aggravating circumstances.³⁵⁵ To prove that Petitioner committed the murders while engaged in the perpetration or attempted perpetration of an aggravated burglary, the State relied on Arthur Darby's testimony that Petitioner "went to the Hurst residence with the intent to collect an unpaid drug debt and that he entered the house armed with an AK-47."³⁵⁶ "Similarly, to prove that [Petitioner] killed the victims during the course of a drug transaction, the [S]tate relied heavily on Darby's testimony that they went to the Hurst residence to collect an overdue drug debt from Claudette Hurst's stepfather."³⁵⁷ Finally, to prove that Petitioner created a risk of death or serious bodily harm to more than one person, the State relied on evidence showing that Petitioner "used a high powered assault rifle to shoot indiscriminately through the bedroom door at a group of people."³⁵⁸ The testimony of Arthur Darby was the primary evidence presented to show that Petitioner entered the home with the AK-47 and was the shooter.³⁵⁹ Therefore, Arthur Darby's testimony was the only evidence establishing that Petitioner had the specific intent to kill the victims.³⁶⁰

355 Id. ; Neal , 2000-0674 at p. 10; 796 So. 2d at 657–58.

356 State Rec., Vol. XXI of XXXIII, State v. Neal , 00-0674, Unpublished Appendix at p. 65 (La. 6/29/2001).

357 Id. at 66.

358 Id.

359 Neal , 2000-0674 at p. 10–11; 796 So. 2d at 658.

360 Id.

As recognized by the Louisiana Supreme Court on direct appeal, Louisiana's law of principals "states that all persons involved in the commission of a crime, whether present or absent, are equally culpable."³⁶¹ However, "[a] principal may be connected only to those crimes for which he has the requisite mental state."³⁶² Under Louisiana law, "[i]t is not enough to find merely that his coconspirator or accomplice had the necessary mental state, since this intent cannot be inferred to the accused. It must be shown that this accused also had the specific intent to kill."³⁶³ Petitioner could not have been convicted of first-degree murder without evidence establishing his requisite mental state, i.e. that Petitioner had the specific intent to kill the victims.³⁶⁴ "[T]he jury heard Hurst's description of the offender and the witnesses’ testimony regarding [Petitioner's] and Darby's clothing and physique, but, nevertheless, accepted Darby's testimony implicating [Petitioner]."³⁶⁵ This credibility determination was within the purview of the jury. However, defense counsel failed to inform the jury of key information calling into question Darby's version of the events. Considering the foregoing, the Court concludes that the state court was unreasonable in finding that defense counsel's failure to present the shoeprint analysis report and the serology report was not prejudicial because Petitioner's "conviction would remain unchanged when considered in light of his role as a principal."³⁶⁶ Arthur Darby's testimony was the only evidence establishing that Petitioner had the specific intent to kill the victims. Petitioner could not have been convicted of first-degree murder without the testimony of Arthur Darby.

361 Id. at p. 12; 796 So. 2d at 659 (citing La. Rev. Stat. § 14:24 ).

362 Id.

363 State v. Holmes , 388 So. 2d 722, 726 (La. 1980).

364 The State cites numerous cases where Louisiana appellate courts have upheld convictions for second-degree murder under the law of principals. See Rec. Doc. 112 at 7–14 (citing State v. Zannie Neal , 00-1300 (La. App. 5 Cir. 4/11/01); 793 So. 2d 574, writ denied 01-1380 (La. 4/12/02); 812 So. 2d 663 (second-degree murder); State v. Anderson , 97-1301 (La. 2/6/98); 707 So. 2d 1223 (second-degree murder); State v. Wiley , 03-884 (La. App. 5 Cir. 4/27/04); 880 So. 2d 854, writ denied 04-1299 (La. 10/29/04); 885 So. 2d 585 (second-degree murder); State v. Jackson , 03-0883 (La. App. 5 Cir. 4/27/04); 880 So. 2d 841, writ denied 04-1399 (La. 11/8/04); 885 So. 2d 1118 (second-degree murder); State v. Hill , 98-1087 (La. App. 5 Cir. 8/31/99); 742 So. 2d 690, writ denied 99-2848 (La. 3/24/00); 758 So. 2d 147 (second-degree murder). None of these cases deals with first-degree murder, which requires that the State prove the defendant had the specific intent to kill.

365 Neal , 2000-0674 at p. 11; 796 So. 2d at 658.

366 State Rec., Vol. XX of XXXIII, Order Denying Application for Post-Conviction Relief at p. 4, Oct. 9, 2013.

Given the importance of Darby's testimony to the State's case and the value of the impeachment evidence, no fairminded jurist could conclude that the failure to impeach Darby's testimony with evidence showing the presence of blood on his shoe would not have "undermine[d] confidence in the outcome."³⁶⁷ Alternatively, even assuming that the state courts’ denial of relief was not unreasonable, Petitioner has demonstrated that he is entitled to relief on his procedurally defaulted ineffective assistance of counsel claim brought under Martinez v. Ryan . ³⁶⁸ As discussed in detail below, the Martinez claim makes clear the trial counsel's failure to investigate the blood evidence prejudiced the defense.

367 See Hughes , 7 F.4th at 392 (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ).

368 566 U.S. at 1, 132 S.Ct. 1309.

C. The Procedurally Defaulted Ineffective Assistance of Counsel Claim

In this federal habeas case, Petitioner raises a new but related ineffective assistance of counsel claim under Martinez v. Ryan . ³⁶⁹ Petitioner alleges that both trial and post-conviction counsel were ineffective for failing to conduct DNA testing on the thread created by the JPSO Crime lab to preserve blood evidence recovered from item 13, which the JPSO chain of custody form identifies as Darby's shoe.³⁷⁰ In 2019, while this federal habeas petition was pending, Petitioner's counsel submitted this thread³⁷¹ for DNA testing.³⁷² That testing showed that it is "approximately 100 quintillion times more likely [ ] the DNA originated from Greg Vickers than if the DNA originated from an unknown individual."³⁷³

369 Id.

370 Rec. Doc. 105 at 10–12.

371 Rec. Doc. 137-1 at 4 (March 31, 1998 Chain of Custody Form).

372 Rec. Doc. 105-5.

373 Id. at 14.

"A fundamental prerequisite for federal habeas relief under § 2254 is the exhaustion of all claims in state court prior to requesting federal collateral relief."³⁷⁴ The Fifth Circuit has recognized that "habeas corpus jurisprudence consistently underscores the central importance of comity, of cooperation and of rapport between the parallel systems of state and federal courts."³⁷⁵ "These concerns animate the court's strict adherence to the doctrine of exhaustion—i.e., the notion that federal courts will not consider a claim on habeas review if it has not been considered and finally rejected by the state courts."³⁷⁶ If a claim has not been adjudicated on the merits in state court, federal review of that claim may be barred by the doctrine of procedural default if the petitioner has failed to meet state procedural requirements for presenting his federal claims, thereby depriving the state courts of an opportunity to address those claims in the first instance.³⁷⁷ "[I]f the petitioner failed to exhaust state remedies and the [state] court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, ... [then] there is a procedural default for purposes of federal habeas ...."³⁷⁸

374 Whitehead v. Johnson , 157 F.3d 384, 397 (5th Cir. 1998) (citing Rose v. Lundy , 455 U.S. 509, 519–20, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) ).

375 Gomez v. Dretke , 422 F.3d 264, 266 (5th Cir. 2005) (internal citations and quotation marks omitted).

376 Id. (cleaned up).

377 Cone v. Bell , 556 U.S. 449, 465, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) (internal citations omitted).

378 Coleman v. Thompson , 501 U.S. 722, 735 n.1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (internal citations omitted).

To the extent Petitioner argues that his counsel performed ineffectively by failing to test the shoe for DNA, this claim was not presented to the state courts because the DNA testing was not performed until 2019 while this federal habeas proceeding was pending. Furthermore, review of the claim is barred by the doctrine of procedural default. "Procedural default exists where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal or (2) the petitioner fails to exhaust all available state remedies, and the state court to which he would be required to petition would now find the claims procedurally barred."³⁷⁹ Under either scenario, a petitioner is considered to have forfeited his federal habeas claims.³⁸⁰ State law would bar Petitioner from bringing this unexhausted claim in state court because state law bars the filing of successive post-conviction applications³⁸¹ and because his time for seeking review in state court has run.³⁸² When state-court remedies are rendered unavailable by the petitioner's own procedural default, federal courts are normally barred from reviewing those claims.³⁸³

379 Bledsue v. Johnson , 188 F.3d 250, 254 (5th Cir. 1999) (citing Coleman , 501 U.S. at 735 n.1, 111 S.Ct. 2546 ).

380 Id.

381 See La. Code Crim. Proc. art. 930.4.

382 See id. art. 930.8.

383 See Coleman , 501 U.S. at 722, 111 S.Ct. 2546.

A federal habeas court may consider a procedurally defaulted claim only if "the petitioner demonstrates either cause and prejudice or that a failure to address the claim will result in a fundamental miscarriage of justice."³⁸⁴ "To establish cause for a procedural default, there must be something external to the petitioner, something that cannot fairly be attributed to him."³⁸⁵ In Martinez v. Ryan , the Supreme Court held that ineffective assistance of counsel in initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.³⁸⁶ In order to establish cause for the procedural default, a petitioner must show that his underlying claims of ineffective assistance of trial counsel are "substantial," meaning the petitioner "must demonstrate that the claim[s] ha[ve] some merit."³⁸⁷ In Trevino v. Thaler , the Supreme Court held that Martinez applies where "the [state] procedural system—as a matter of its structure, design, and operation—does not offer most defendants a meaningful opportunity to present a claim of ineffective assistance of trial counsel on direct appeal."³⁸⁸

384 Hughes v. Johnson , 191 F.3d 607, 614 (5th Cir. 1999).

385 Johnson v. Puckett , 176 F.3d 809, 816 (5th Cir. 1999) (quotation marks omitted).

386 566 U.S. at 1, 132 S.Ct. 1309.

387 Id. at 14, 132 S.Ct. 1309.

388 569 U.S. 413, 428, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013).

The Fifth Circuit has explained that "[w]hen a state, like Louisiana, requires that a prisoner raise an ineffective assistance of counsel claim on collateral review, a prisoner can demonstrate cause for the default in two circumstances: (1) ‘where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial’ and (2) ‘where appointed counsel in the initial-review collateral proceeding ... was ineffective under the standards of Strickland v. Washington . ’ "³⁸⁹ " Martinez thus created an exception to the general rule, which provides that the ineffectiveness of a petitioner's habeas attorney is not cause to excuse a procedural default because there is no constitutional right to representation at that stage."³⁹⁰ However, this is a " ‘narrow exception’ that applies only with respect to ‘cause for a prisoner's procedural default of a claim of ineffective assistance at trial.’ "³⁹¹

389 Lindsey v. Cain , 476 F. App'x 777, 778 (5th Cir. 2012) (quoting Martinez , 566 U.S. at 14, 132 S.Ct. 1309 ).

390 Prystash v. Davis , 854 F.3d 830, 836 (5th Cir. 2017).

391 Id. (quoting Martinez , 566 U.S. at 9, 132 S.Ct. 1309 ).

Therefore, under Martinez and Trevino , to establish "cause" to excuse a procedural default, a petitioner must show that:

(1) the claim of "ineffective assistance of trial counsel" was a "substantial" claim; (2) the "cause" consisted of there being "no counsel" or only "ineffective" counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the "initial" review proceeding in respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state law requires that an "ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral proceeding."³⁹²

392 Trevino , 569 U.S. at 428, 133 S.Ct. 1911.

Here, prongs three and four are satisfied because the Fifth Circuit has held that "Louisiana prisoners can benefit from the Martinez /Trevino exception to the procedural-default rule if they can show that they have a substantial [ineffective assistance of trial counsel] claim and received [ineffective assistance of counsel] from state habeas counsel."³⁹³

393 Coleman v. Goodwin , 833 F.3d 537, 543 (5th Cir. 2016).

As discussed above, trial counsel provided deficient performance by failing to present the serology report at trial. Likewise, counsel's failure to further investigate the serology evidence was deficient. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."³⁹⁴ Counsel's "decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments."³⁹⁵ The Supreme Court uses the American Bar Association standards as a guide for determining the reasonableness of an attorney's actions.³⁹⁶ The standards provide that "[i]t is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case."³⁹⁷ "[T]he duty to investigate does not force defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste."³⁹⁸ Nevertheless, "trial counsel must not ignore pertinent avenues of investigation, or even a single, particularly promising investigation lead."³⁹⁹

394 Strickland , 466 U.S. at 691, 104 S.Ct. 2052.

395 Id.

396 Wiggins v. Smith , 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

397 Rompilla v. Beard , 545 U.S. 374, 387, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (quoting 1 ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp.) ).

398 Id. at 383, 125 S.Ct. 2456.

399 Hughes , 7 F.4th at 387 (internal citations and quotation marks omitted).

In an August 16, 2011 declaration, which was submitted to the state courts during the post-conviction proceedings, Mr. Barnett stated that he "did not review the physical or forensic evidence in the case."⁴⁰⁰ If Mr. Barnett had taken the basic step of examining the forensic evidence, he would have learned of the presence of blood on item 13, which the JPSO chain of custody report identifies as Arthur Darby's shoe.⁴⁰¹ Mr. Barnett then could have consulted with a forensics expert to test the evidence. The DNA analysis conducted in February 2019 establishes the extreme likelihood (1 in 100 quintillion probability) that the blood found on item 13 belonged to victim Greg Vickers.⁴⁰² Mr. Barnett's failure to do any sort of investigation to clarify the serology report, given the importance of Arthur Darby's testimony, belies reasonable competence.⁴⁰³

400 Rec. Doc. 4-1 at 67.

401 Rec. Doc. 137-1 at 4 (March 31, 1998 Chain of Custody Form).

402 Rec. Doc. 105-5 at 22.

403 See Hughes , 7 F.4th at 389.

Additionally, there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.⁴⁰⁴ As discussed in detail above, the testimony of Arthur Darby was the primary evidence presented by the State to show Petitioner was the shooter. Evidence showing that the shoe linked to Arthur Darby tested positive for Greg Vickers’ blood would have severely called into question Darby's version of events and his testimony that he stayed in the car during the shootings. Defense counsel's decision not to perform DNA testing on the blood found on Arthur Darby's shoe was prejudicial under Strickland.

404 Strickland , 466 U.S. at 694, 104 S.Ct. 2052.

The State asserts that the DNA results do not show that Darby was the shooter because only a small amount of blood was found on Arthur Darby's shoe, apparently suggesting that more of Greg Vickers's blood would have been present if Darby were the shooter.⁴⁰⁵ This argument is unavailing. The State's theory at trial was that Darby stayed in the car during the entire encounter and did not enter the home. The fact that the amount of blood was small does not explain the presence of the victim's blood on Darby's shoe in the first place. During trial, Petitioner's counsel argued that Arthur Darby was lying about their relative roles in the offense. Counsel's failure to investigate deprived Petitioner of the opportunity to corroborate this argument with the blood evidence from Darby's shoe.⁴⁰⁶

405 Rec. Doc. 112 at 11–12.

406 The State also raises three specious arguments in an attempt to question the validity of the DNA report. First, the State points out that the DNA report states that the thread examined was "collected from the bottom of the Darby left black Nike shoe." Rec. Doc. 112 at 12 (citing Rec. Doc. 105-5 at 10). The State asserts that when the thread was created, JPSO Crime Lab Forensic Scientist Pamela Williams "did not note where on this shoe the thread was made." Id. Second, the State also notes that the DNA report references two threads, while the JPSO report only references one thread. Id. at 13. Third, the State contends that the DNA report "raises a question as to the integrity of the evidence as it shows that a thread and a blood sample from the victim (Vickers) were packaged together for shipment to petitioner's expert." Id. (citing Rec. Doc. 105-5 at 3). These arguments are unavailing. The thread Petitioner's expert examined was created by the JPSO Crime Lab. JPSO officials labeled, packaged, and sent the evidence to the Petitioner's expert at the Forensic Analytical Crime Lab. Rec. Doc. 105-5 at 2–3. If anything, the State's arguments suggest potential issues with the JPSO Crime Lab's handling and documentation of the evidence, not the validity of the DNA results provided by Petitioner's expert.

The issue of who physically entered the house on March 31, 1998, and who actually shot Robinson and Vickers, is of paramount importance because it formed the basis for the prosecution's decision to seek the death penalty against Petitioner and it formed the evidentiary basis for all of the aggravating factors found against Petitioner. The results of the DNA testing demonstrate that counsel's performance prejudiced the defense. Counsel's failure to investigate the blood evidence and to present the DNA testing undermines confidence in the jury verdict and death sentence. There is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different in the following ways: (1) the jury might not have convicted Petitioner of first-degree murder; (2) the jury might have convicted Petitioner of a lesser offense such as second-degree murder or manslaughter; or (3) the jury might not have voted to impose the death penalty.

The only remaining issue is whether Petitioner has established that his post-conviction counsel was constitutionally ineffective in failing to perform the DNA testing. During the state post-conviction proceedings, Petitioner's counsel presented an affidavit of Ron Singer, the Technical and Administrative Director of the Tarrant County Medical Examiner's Office, who tested the shoes for blood and found that blood was in fact present on the shoes.⁴⁰⁷ However, the state post-conviction counsel did not request the DNA testing. This claim calls into question the reasonableness of the state post-conviction counsel's investigation. "In assessing the reasonableness of an attorney's investigation, ... a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further."⁴⁰⁸ The Fifth Circuit has recognized that post-conviction counsel had an obligation to "explore all avenues leading to facts relevant to the merits of the case."⁴⁰⁹

407 Rec. Doc. 4-1 at 94.

408 Wiggins , 539 U.S. at 526, 123 S.Ct. 2527.

409 Rhodes , 751 F. App'x at 532 (quoting Standards for Criminal Justice § 4-4.1 (Am. Bar Ass'n 1993)).

Petitioner's state post-conviction counsel had item 13 tested in 2011 to confirm the presence of blood. It was unreasonable not to compare that blood sample to the known DNA samples of the victims. The quantum of evidence already known to post-conviction counsel would have led a reasonable attorney to investigate further. The State all but concedes that trial and post-conviction counsel's performance was deficient.⁴¹⁰ Nevertheless, the State argues that Petitioner is not entitled to relief because he cannot establish prejudice as "the record supports [P]etitioner's culpability as a principal."⁴¹¹ As discussed in detail above, Petitioner could not have been convicted of first-degree murder without evidence establishing that he had the specific intent to kill the victims. The testimony of Arthur Darby was the only evidence establishing that Petitioner entered the house with the specific intent to kill the victims. Evidence establishing that victim Greg Vickers's blood was on Arthur Darby's shoe calls into question his testimony that he remained in the car and did not enter the house.

410 Rec. Doc. 112 at 14–16.

411 Id. at 15.

Petitioner's post-conviction counsel's performance was deficient because they were aware of the presence of blood on Arthur Darby's shoe but nevertheless failed to submit the blood evidence for DNA testing. This deficient performance prejudiced Petitioner because it prevented him from timely asserting his meritorious ineffective assistance of counsel claim in state court.⁴¹² For these reasons, post-conviction counsel's failure to further investigate the blood evidence was unreasonable and prejudiced Petitioner. Therefore, post-conviction counsel was constitutionally ineffective.

412 Rhodes , 751 F. App'x at 532.

As a final note, as noted throughout this Order, during the long history of this litigation, the State has repeatedly conceded that Arthur Darby's shoes were identified as item 13 on the JPSO chain of custody form.⁴¹³ In 2020, after receiving the results of the DNA testing performed by Petitioner's counsel, the State submitted numerous additional pieces of evidence for testing. In opposition to Petitioner's motion for summary judgment, the State suggested that item 13 may not have been worn by Arthur Darby after all.⁴¹⁴ Specifically, the State asserted that DNA testing revealed that Darby's DNA was found on item 78,⁴¹⁵ identified on the JPSO chain of custody form as "Black Shoes, Unk. Brand + Size. Received From Det. M. Moscona, at 725 Maple Av. Harvey, LA."⁴¹⁶ Neither victims’ DNA was found on item 78.⁴¹⁷

413 See, e.g. , Rec. Doc. 12 at 14.

414 Rec. Doc. 169-1 at 12.

415 Id.

416 Rec. Doc. 137-1 at 4 (March 31, 1998 Chain of Custody Form).

417 Rec. Doc. 169-4 at 6.

The State now posits—more than twenty years after the evidence was collected and the chain of custody form was completed—that item 78 may have been the shoes worn by Darby. This argument is tenuous at best. The Jefferson Parish Sheriff's Office crime lab notes refer to item 78 in more detail as "one pair of black HONCHOS – Steel Toe work shoes from (Neal, Jarrell)."⁴¹⁸ On direct appeal and throughout the post-conviction proceedings, the parties have all proceeded under the assumption that the chain of custody form is accurate, that item 13 identified the shoes worn by Arthur Darby, and that item 78 identified the shoes worn by Jarrell Neal. If anything, the State's new DNA testing demonstrates that the chain of custody is ripe for further investigation and that the proper venue to straighten out which items belong to which person is a new trial. The role of a federal habeas court is not to adjudicate a petitioner's guilt or innocence.⁴¹⁹ The record makes clear Petitioner was denied effective counsel during trial and during the state post-conviction proceedings in violation of the Sixth Amendment to the United States Constitution."⁴²⁰

418 Id. at 19 (April 25, 1998 Crime Lab Report).

419 Herrera , 506 U.S. at 416, 113 S.Ct. 853 ("[I]n state criminal proceedings the trial is the paramount event for determining the guilt or innocence of the defendant.").

420 Young , 356 F.3d at 629.

IV. Conclusion

For the foregoing reasons, Petitioner has established that his trial counsel and post-conviction counsel were constitutionally ineffective. Under Martinez and Trevino , that excuses the procedural default of his claim alleging ineffective assistance of counsel based on the failure to conduct DNA testing. Petitioner is therefore entitled to a writ of habeas corpus. Accordingly,

IT IS HEREBY ORDERED that Jarrell Neal's petition for writ of habeas corpus is GRANTED.

IT IS FURTHER ORDERED that the State shall set aside Petitioner's conviction and sentence.

IT IS FURTHER ORDERED that the State must release Petitioner from custody unless the State grants Petitioner a new trial within 120 days from the date of this Order.⁴²¹

421 See Reed v. Quarterman , 555 F.3d 364, 382 (5th Cir. 2009).

IT IS FURTHER ORDERED that Petitioner's remaining claims are DISMISSED AS MOOT .⁴²²

422 See Pondexter v. Dretke , 346 F.3d 142, 145 (5th Cir. 2003). See also Moore v. Vannoy , 968 F.3d 482, 487 (5th Cir. 2020) (declining to follow rule set forth in Clisby v. Jones , 960 F.2d 925 (11th Cir. 1992) that district courts in the Eleventh Circuit must resolve all claims for relief raised in a habeas petition regardless of whether relief is ultimately granted or denied).