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Case 3:13-cv-02396-RGJ-KLH Document 21 Filed 12/04/13 Page 1 of 25 PageID #: 1697
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF LOUISIANA
`MONROE DIVISION
`
`LEROY DAVIS #560590
`
`VERSUS
`
`WARDEN LOUISIANA STATE
`PENITENTIARY
`
`CIVIL ACTION NO. 3:13CV2396
`SEC. P
`
`JUDGE JAMES
`
`MAGISTRATE JUDGE HAYES
`
`REPORT AND RECOMMENDATION
`
`Pro se Petitioner Leroy Davis, an inmate in the custody of Louisiana’s Department of
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`Corrections, filed the instant Petition for writ of habeas corpus on July 8, 2013. [doc. # 1, p.
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`16]. Petitioner attacks his 2009 conviction for second degree murder and the life sentence
`1
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`imposed by the Sixth Judicial District Court, Tensas Parish. This matter has been referred to the
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`undersigned for review, report, and recommendation in accordance with the provisions of 28
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`U.S.C. § 636, Rule 10 of the Rules Governing Section 2254 Cases in the District Courts, and the
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`standing orders of the Court. For the following reasons, it is recommended that the Petition be
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`DENIED.
`
`Background
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`The underlying facts in this case have been set forth by the Louisiana Second Circuit
`
`Court of Appeal as follows:
`
` Petitioner presented his pleadings to the Louisiana State Penitentiary Legal Programs
`1
`Department for filing on July 8, 2013. [doc. # 1, p. 16]. The Petition and exhibits were
`mistakenly filed in the United States District Court for the Eastern District of Louisiana on July
`9, 2013. See Davis v. Cain, No. 2:13-cv-5044 (E.D. La.) Upon realizing the error, Petitioner
`again presented his pleadings and exhibits to the Legal Programs Department and filed the
`instant Petition in this Court on July 30, 2013. Id. at 18. Pursuant to the “mailbox rule,” Cooper
`v. Brookshire, 70 F.3d 377, 380 (5 Cir. 1995), the pleadings should be considered filed as of the
`th
`date they were initially presented to the Legal Programs Department for filing.
`
`

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`Case 3:13-cv-02396-RGJ-KLH Document 21 Filed 12/04/13 Page 2 of 25 PageID #: 1698
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`In January of 2007, the defendant told police that his wife, Annette Davis, had been
`missing for two days. Annette's vehicle was soon discovered after a plea for help was
`aired on the local news. Two months after her disappearance, her body was found in
`a shallow grave off Newell Ridge Road, northwest of Newellton. She died from blunt
`force trauma to her head.
`
`State v. Davis, 47 So. 3d 1112, 1113 (La. App. 2 Cir. 2010).
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`A Tensas Parish grand jury indicted Petitioner on May 31, 2007, charging him with the
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`offense of Second Degree Murder. [doc. # 14, p. 45]. On October 29, 2009, a jury found
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`Petitioner guilty as charged. [doc. # 14-2, p. 66]. On December 2, 2009, Petitioner was
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`sentenced to life imprisonment at hard labor without the benefit of probation, parole, or
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`suspension of sentence. [doc. # 14-5, p. 33].
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`Petitioner appealed to the Second Circuit Court of Appeal claiming primarily that the
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`evidence was insufficient to support the verdict. Davis, 47 So. 3d at 1119. Petitioner also
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`alleged seven other assignments of error, the first six of which being described by the appellate
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`court as meritless “stream of consciousness” arguments. Id. at 1120. Specifically, Petitioner
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`alleged: (1) [Petitioner] was prejudiced that the ADA’s opening statement alleged this was a
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`crime of passion, ignited by [Petitioner’s] wife having an affair; (2) A misstatement concerning
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`“Pete” Mizell’s identification of him on the bridge and the Crime Stoppers call being undisclosed
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`Brady material; (3) Alleged conflicts in the testimony of the state crime lab personnel and Sheriff
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`Jones, about whether or not his fingerprints were on the envelope of the mysterious letters
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`received by him; (4) None of the “sign” letters could be traced to his home; (5) The state tried to
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`prove he was on a bridge on the Monday in question; and (6) The state disclosed a handwritten
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`note to Sheriff Ricky Jones. Id. at 1120-21. The seventh claim ostensibly alleged ineffective
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`assistance of counsel. Id. at 1121.
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`2
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`

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`Case 3:13-cv-02396-RGJ-KLH Document 21 Filed 12/04/13 Page 3 of 25 PageID #: 1699
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`On September 22, 2010, the appellate court affirmed Petitioner’s conviction. Id. The
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`Louisiana Supreme Court denied Petitioner’s application for writ of certiorari on February 25,
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`2011. [doc. # 1-4, p. 2]. Petitioner did not seek further review in the United States Supreme
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`Court.
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`Petitioner subsequently filed an application for post-conviction relief in the Sixth Judicial
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`District Court. [doc. # 14-6, p. 6]. The trial court denied the application on September 18, 2012.
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`Id. at 94. The Second Circuit Court of Appeal denied Petitioner’s writ application on January 10,
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`2013. Id. at 98. The Louisiana Supreme Court denied writs on June 21, 2013. Id. at 100.
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`Petitioner filed the instant Petition on July 8, 2013, requesting relief for the
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`aforementioned claims raised on direct appeal. [doc. # 1-2, p. 7].
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`The matter is now before the undersigned.
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`I.
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`Standard of Review – 28 U.S.C. § 2254
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`Law and Analysis
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`The Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, 28 U.S.C. § 2254,
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`governs habeas corpus relief. The AEDPA limits how a federal court may consider habeas claims.
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`After the state courts have “adjudicated the merits” of an inmate’s complaints, federal review “is
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`limited to the record that was before the state court[.]” Cullen v. Pinholster, 131 S. Ct. 1388, 1398
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`(2011). An inmate must show that the adjudication of the claim in state court:
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`(1) resulted in a decision that was contrary to, or involved an unreasonable
`application of, clearly established Federal law, as determined by the Supreme Court
`of the United States; or
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`(2) resulted in a decision that was based on an unreasonable determination of the
`facts in light of the evidence presented in the State court proceeding.
`
`3
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`

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`Case 3:13-cv-02396-RGJ-KLH Document 21 Filed 12/04/13 Page 4 of 25 PageID #: 1700
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`28 U.S.C. § 2254(d)(1)-(2).
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`A decision is “contrary to” clearly established Federal law “if the state court arrives at a
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`conclusion opposite to that reached by . . . [the Supreme Court] on a question of law or if the
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`state court decides a case differently than [the Supreme Court] has on a set of materially
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`indistinguishable facts.” Dowthitt v. Johnson, 230 F.3d 733, 740-41 (5th Cir. 2000) (quoting
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`Williams v. Taylor, 529 U.S. 362 (2000)). “The ‘contrary to’ requirement refers to holdings, as
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`opposed to the dicta, of . . . [the Supreme Court’s] decisions as of the time of the relevant state-
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`court decision.” Id. at 740. Under the “unreasonable application” clause, a federal habeas court
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`may grant the writ only if the state court “identifies the correct governing legal principle from . . .
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`[the Supreme Court’s] decisions but unreasonably applies the principle to the facts of the
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`prisoner’s case.” Id. at 741.
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`Section 2254(d)(2) speaks to factual determinations made by the state courts. Federal
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`courts presume such determinations to be correct; however, a petitioner can rebut this
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`presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
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`II.
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`Petitioner’s Claims
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`A. Claim One: Insufficient Evidence
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`In Petitioner’s first claim, he contends that the circumstantial evidence adduced at trial
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`was insufficient to prove the elements of the crime of second degree murder. [doc. # 1-2, p. 7].
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`He states that “in order to convict a person based on circumstantial evidence the State must
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`negate every reasonable hypothesis of innocence” and “[i]n this case that simply did not happen.”
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`Id. at 14. Petitioner goes on to posit several alternative hypotheses as to how his wife could have
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`been killed. Id.
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`4
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`

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`When a habeas petitioner asserts that the evidence presented to the trial court was
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`insufficient to support his conviction, the limited question before a federal habeas court is
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`whether the state appellate court’s decision to reject that claim was an objectively unreasonable
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`application of the clearly established federal law set out in Jackson v. Va., 443 U.S. 307 (1979).
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`Williams v. Puckett, 283 F.3d 272, 278-79 (5 Cir. 2002). A conviction is based on sufficient
`th
`
`evidence if, “after viewing the evidence in the light most favorable to the prosecution, any
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`rational trier of fact could have found the essential elements of the crime beyond a reasonable
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`doubt.” Jackson, 443 U.S. at 319. The Jackson inquiry “does not focus on whether the trier of
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`fact made the correct guilt or innocence determination, but rather whether it made a rational
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`decision to convict or acquit.” Herrera v. Collins, 506 U.S. 390, 402 (1993). Thus, a conviction
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`may rest on sufficient evidence “even though the facts also support one or more reasonable
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`hypotheses consistent with the defendant’s claim of innocence.” Gibson v. Collins, 947 F.2d
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`780, 783 (5 Cir. 1991).
`th
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`In the case at bar, the Louisiana appellate court invoked and applied the Jackson standard,
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`and it did not do so unreasonably. See Davis, 47 So. 3d at 1119. To explain, second degree
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`murder is the killing of a human being when the offender has the specific intent to kill or to
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`inflict great bodily harm. LA. REV. STAT. ANN. § 14:30.1(A)(1). Specific intent need not be
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`proven as a fact, but may be inferred from the circumstances surrounding the offense and the
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`conduct of the defendant. State v. Graham, 420 So. 2d 1126, 1127 (La. 1982). In addition to
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`proving specific intent, the State is also required to prove that the defendant is the perpetrator.
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`State v. Draughn, 950 So. 2d 583, 593 (La. 2007). Identity with regard to second degree murder
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`can be proved by circumstantial evidence alone. See, e.g., State v. Blanks, 86 So. 3d 56, 65 (La.
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`5
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`

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`Case 3:13-cv-02396-RGJ-KLH Document 21 Filed 12/04/13 Page 6 of 25 PageID #: 1702
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`App. 2 Cir. 2012); State v. Seals, 83 So. 3d 285, 307 (La. App. 5 Cir. 2011); State v. Knight, 34
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`So. 3d 307, 315-16 (La. App. 5 Cir. 2010). Further, when the key issue in the case is
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`identification, the State is required to negate any reasonable probability of misidentification in
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`order to carry its burden of proof. State v. Bright, 776 So. 2d 1134, 1147 (La. 2000). Finally, as
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`Petitioner correctly states, when circumstantial evidence is used to prove the commission of the
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`offense, LA. REV. STAT. ANN. § 15:438 states that “assuming every fact to be proved that the
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`evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of
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`innocence.” 2
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`The state appellate court set forth the testimony and evidence presented at trial as follows:
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`1. Officer Clarence Hall of the Newellton Police Department testified that:
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` • on Tuesday, January 16, 2007, around 7:30 p.m., Leroy Davis (Petitioner) flagged
`him down and told him that he needed to speak with the police chief;
`
`• since the police chief was unavailable, Officer Hall had Davis come to the police
`station to speak with him;
`
`• Davis mentioned something about needing another cell phone;
`
`• after a brief conversation, the officer left to answer an alarm call;
`
`• after completing that call, he was again flagged down by Davis, at which time they
`returned to the station and talked some more;
`
`• Davis told the officer that his wife had been missing for a couple of days;
`
`• the officer called Annette's cell phone, but no one answered;
`
` In caution, the Court notes that Louisiana’s circumstantial evidence standard requiring
`2
`that every reasonable hypothesis of innocence be excluded does not apply in federal habeas
`corpus proceedings; only the Jackson standard need be satisfied here, even if state law would
`impose a more demanding standard of proof. See Foy v. Donnelly, 959 F.2d 1307, 1314 n.9 (5th
`Cir. 1992).
`
`6
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`

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`Case 3:13-cv-02396-RGJ-KLH Document 21 Filed 12/04/13 Page 7 of 25 PageID #: 1703
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`• he then called Annette's place of employment and was told that she was not there;
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`• he kept trying to call Annette's cell phone until after midnight, at which time he
`called the sheriff's office to advise that the lady was missing;
`
`• Detective John Matthews came to the Newellton Police Department to speak with
`Davis; and
`
`• he (Hall) spoke with Annette's son, who told him that Davis had been recording
`Annette's telephone conversations and that his mother had asked him to pass this
`information on to the sheriff's office.
`
`2. Detective John Matthews of the Tensas Parish Sheriff's Office testified that:
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`• he first spoke with Davis early Wednesday morning, January 17, 2007, at the
`Newellton Police Department;
`
`• Davis told him that he hadn't seen his wife since Sunday, January 14, when he left
`to take his daughter to college;
`
`• Davis gave him a written statement detailing what he did on that Monday;
`
`Davis wrote that on Monday, he woke up around 6:30 a.m., went to
`work, left work around 3:00 or 3:30 p.m., went to Wal–Mart for
`about 30 minutes and then came home around 6:00 or 6:30 p.m., with
`his wife not being present at the house. Later he went to a lodge
`meeting, stopped at a bar afterwards, and returned home again around
`10:00 p.m. During this statement, Davis never mentioned that his
`truck broke down or that his sister picked him up to bring him home.
`Detective Matthews testified that Davis also never mentioned that he
`drove his wife's vehicle, or was near Newell Ridge Road, on that date.
`
`• Davis then gave a statement detailing what he did on that Tuesday;
`
`Davis wrote that on Tuesday, January 16, he got up and arrived at
`work at around 8:00 a.m. He stayed for a short period of time and
`then left somewhere between 9:00 or 9:30 a.m. to go to the Tower
`Loan in St. Joseph to complete a loan application. He then went to
`Tensas State Bank in Newellton to make a deposit. He got gas and
`activated a cell phone in Shreveport. He then left Shreveport and
`called Verizon in reference to his early report that his cell phone was
`missing. He then drove to Monroe, where he had a daughter (or two
`daughters) who went to college, gave them each $20.00, and drove
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`7
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`

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`Case 3:13-cv-02396-RGJ-KLH Document 21 Filed 12/04/13 Page 8 of 25 PageID #: 1704
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`home. He revealed nothing at this point about his truck breaking
`down at the intersection of Highway 888 and 575. Davis told
`Matthews that he had contacted the hospital where his wife worked
`on Tuesday evening to see if she had come in for her shift. He also
`told Matthews that he called his wife's friend, Emma Bass, who told
`him that she had seen Annette driving her car on Monday night on her
`way to work. Ms. Bass later denied telling Davis that she saw Annette
`on that Monday evening.
`
`• at this point, Davis conveyed to Detective Matthews his fear that someone had
`kidnapped his wife on her way to work;
`
` • he (Matthews) reported his findings to Sheriff Ricky Jones early the next morning,
`whereupon the two made several phone calls to the hospital where Annette worked
`and also contacted the news media with a request for the public's assistance in finding
`Annette or her car;
`
`• the television station's story led to the discovery of the vehicle in Madison Parish;
`
`• he interviewed Davis's sister, Jackie Sardinas, who said that he had contacted her
`Monday, asking to be picked up from a truck stop in Tallulah;
`
`• the next morning, she admitted lying the day before about picking up her brother
`from a truck stop, admitted that he had actually called her a few days earlier and had
`her drive out to Highway 603, telling her that if his truck ever broke down, he would
`need her to pick him up right there;
`
`This location turned out to be about two-tenths of a mile south of
`where Annette's vehicle was later discovered.
`
`• she then told Matthews that she actually picked up Davis about a quarter of a mile
`north of that area on that Monday;
`
`• Ms. Sardinas took him to the exact location where she had picked him up;
`
`• using photographs, Matthews showed the jury the area in question, pointing out the
`close proximity to where Annette's vehicle was found;
`
`• Matthews never asked Davis if his car had broken down in that area; and
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`• He had never heard about a farmer jump-starting the defendant's truck.
`
`3. Tensas Parish Sheriff Ricky Jones testified that:
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`8
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`

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`Case 3:13-cv-02396-RGJ-KLH Document 21 Filed 12/04/13 Page 9 of 25 PageID #: 1705
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`• he became involved in the case after a Newellton police officer contacted him;
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`• as soon as he read defendant's first statement he knew that Davis was guilty;
`
`• the tipoff was the attempt to set up such an elaborate alibi;
`
`• he contacted a local news station and gave them a picture of Annette and a detailed
`description of her car, in an appeal to the public for help;
`
`• because of the media's help, the car was located in Madison Parish;
`
`• he went to the scene, finding a pair of white Crocs shoes in the car;
`
`• the car, registered in Annette's name, had a flat tire;
`
`• Louisiana State Police became involved, with Trooper Harwell as lead investigator;
`
`• Davis told officers that they would receive a “sign of his innocence”;
`
`• a letter addressed to Jones was received a short while later by Harwell;
`
`• the letter said Annette was okay because, “God takes care of his own”;
`
`• the mailing contained a cell phone;
`
`• Davis gave verbal consent for the police to search his home;
`
`• Harwell found a drop of blood on a shoe in the hallway;
`
`• a search warrant was secured, the execution of which revealed blood splatters on
`the walls and carpeting in the hallway, on picture frames, on a bookshelf, with most
`of the blood found on the carpeting;
`
`• Davis admitted recently purchasing carpet runners in the hallway;
`
`• State Police Crime Lab personnel cut a piece of the carpeting for testing, which
`showed that the blood had soaked through the carpeting and padding, leaving a stain
`on the concrete foundation of the floor;
`
`• Davis said that he did not know what was splattered on the wall;
`
`• Davis was interviewed several more times;
`
`9
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`

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`• the police received another letter, triggering another search of the Davis home for
`the typewriter or printer that generated the correspondence;
`
`• no physical evidence was found to link Davis to the letters, and the only print
`discovered was that of Sheriff Jones;
`
`• when asked by Davis whether they had received any signs, the officers responded
`in the negative;
`
`• within a few weeks, three anonymous letters were received by the officers;
`
`• the third letter in regard to Annette (referred to therein by her first name, Melanie)
`stated that she was doing well, was sorry for what she had done, but that she wanted
`to start a new life, requesting that her family stop wondering about her whereabouts,
`as she did not want to be found;
`
`• a Crime Stoppers caller from Ouachita Parish claimed to have discovered a grave
`at the intersection of Highways 888 and 575;
`
`• he (Jones), Matthews, and Chief Deputy Rushing went to the site, noting that the
`corners of the grave were marked by bricks, and a pipe with artificial flowers was
`stuck into the ground;
`
`• the pipe and flowers were located above the body's head, leading him (Jones) to
`reason that whoever left them knew how the body was arranged;
`
`• he contacted the State Police Crime Lab, who in turn contacted Mary Manhein, a
`nationally known expert in forensic anthropology;
`
`• in court, he identified the gravesite on a map, locating it just west of Newellton, off
`Highway 888, down a turn row, next to a cemetery;
`
`• he stayed while the female body, wrapped in plastic and tied with rope, was
`excavated from the grave;
`
`• the body was in a River Region shirt, with a necklace inscribed with an “A”;
`
`• the body had a black garbage bag on her head;
`
`• the autopsy reported the cause of death to be blunt force trauma to the head;
`
`• Ms. Manhein identified the body as Melanie Annette Davis;
`
`10
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`

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`• Davis was arrested the day after the body was found and identified;
`
`• an inmate, Craytonia Badger, later wrote him (Jones) about a conversation he had
`with Davis in jail, during which Davis admitted attempting to murder his wife on
`three separate occasions, the first two being unsuccessful;
`
`Davis told Craytonia Badger that he had picked up two barrels and
`some cement and intended to incapacitate his wife, put her in the
`barrels with cement, and throw her into the Mississippi River. He said
`the plan failed because as he was trying to beat his wife unconscious,
`his daughter walked in. The second attempt involved rat poison in her
`food, but she didn't eat supper that evening. He finally killed her by
`hitting her with something. He buried her in a shallow grave.
`
`• Badger's credibility was enhanced by his coming forward with information not
`known to the general public—that the defendant had AIDS;
`
`• Davis told Badger of his wife's unfaithfulness;
`
`• he (Davis) also told Badger that digging the grave took several days;
`
`• Juanita “Pete” Mizell thought she saw Davis driving his wife's car on the Monday
`in question, January 15, 2007, on a bridge on Highway 888, near where Annette's
`body was later discovered;
`
`• he (Jones) admitted that no other suspects were developed;
`
`• there was neither DNA nor any fingerprints linking Davis with the letters;
`
`• the only circumstantial evidence linking the letters to Davis was that Davis had told
`police they would receive a sign that he was innocent;
`
`• he had never arrested the defendant before, and he was unaware of any domestic
`problems between Davis and Annette;
`
`• Davis cooperated with police by giving voluntary statements, and by giving verbal
`consent for the search of his home;
`
`• no weapon was ever recovered at the defendant's home, and no physical evidence
`linked Davis to the crime, other than her blood being at his home;
`
`Later testimony of crime lab personnel showed additionally that DNA
`of both defendant and victim were mixed in two locations in her car:
`
`11
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`

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`the steering wheel cover and a portion of the left rear carpet in the
`trunk.
`
`• the last person to know that Annette was alive was her son, who spoke to her on the
`phone in the late afternoon on the Monday in question;
`
`• Ms. Sardinas and Davis both placed him at home on Monday at 6:30 p.m.;
`
`• he was at a lodge meeting sometime around 7:00 or 7:30 p.m.;
`
`• Davis went to a bar afterwards;
`
`• on Tuesday, Davis went to work, then drove around north Louisiana, visiting a loan
`company, a bank, a gasoline station, and a man about Jeep repairs;
`
`• no physical evidence tied Davis to the gravesite; no fingerprints, no shoe prints, and
`no DNA evidence.
`
`• concerning Badger's information, he (Jones) never confirmed with prison officials
`that Badger and Davis had any contact, nor did he confirm whether or not Davis had
`perpetrated domestic violence on Annette in the past;
`
`• Badger received no benefit for supplying the information on Davis;
`
`• no neighbors saw the defendant load anything into a car;
`
`• he did not know whether police had checked phone records to see if Davis had tried
`to call his wife during this time frame;
`
`• a person was indeed arrested for the theft of Davis's cell phone;
`
`• it was very possible that Davis did not leave fingerprints because he was wearing
`gloves, and his DNA would have been all over the crime scene anyway, as it was his
`own home;
`
`• since the gravesite was outdoors, any DNA could have washed away;
`
`• no evidence was ever found that any other suspect was ever in the home of the
`defendant and Annette, during this time frame;
`
`• if there had been domestic abuse between Davis and Annette, it was quite possible
`that no one else knew, not even family members;
`
`12
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`

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`• Annette was having an affair with a man named Richard Dunmore, who had solid
`alibis for his whereabouts during the critical couple of days; and
`
`• the conversations with Davis about “signs of innocence” was during the same
`relatively short time frame during which the letters came.
`
`4. Investigator Rob Rushing of the Tensas Parish Sheriff's Office testified that he was
`present when the defendant made a statement on January 17, 2007, though Officer
`Harwell was the officer who actually took the statement. Rushing authenticated the
`videotape of this statement, which was taken on Wednesday, the day after Annette
`was reported missing. The tape was then played in open court.
`
`Officer Rushing testified that at the time the statement was recorded, the case
`concerned a missing person. He stated that the Louisiana State Police were not called
`in until Annette's abandoned car was found; however, his office continued to assist
`in the investigation.
`
`He testified that he found some of the information Davis told him to be true, and
`some false. The defendant admitted to having extramarital affairs and told police that
`his wife did as well. It appeared from the information given to police by Davis that
`Annette had infected him with HIV, but during their investigation, police discovered
`that Davis got sick first. Davis told him he went to a lodge meeting on Monday in his
`1998 Oldsmobile, which was later confirmed. Davis also said in his statement that
`he never argued with his wife, which fact was discredited during the police
`investigation that revealed that the two argued quite often.
`
`Police also discovered that Davis did not travel through Delhi and go to a truck stop
`in Tallulah, although he had said this in his statement. Davis also said during his
`statement that when his sister dropped him off that evening at home, neither Annette
`nor her vehicle was there; however, witnesses (Richard Dunmore, Demarco
`Dunmore, and Jackie Sardinas) stated that Annette's vehicle was there that evening.
`Jackie Sardinas stated that her car was there when she dropped her brother off.
`Richard Dunmore said he saw Ms. Sardinas drop Davis off and noticed that Annette's
`car was at home.
`
`5. Deputy Jack McMillan of the Tensas Parish Sheriff's Office interviewed Emma
`Bass as part of his investigation. He stated that Ms. Bass was a friend and coworker
`of Annette's. Ms. Bass told Deputy McMillan that she had received a phone call from
`the defendant wherein he told her his whereabouts on Tuesday. Ms. Bass thought it
`was strange that he called because they weren't close. In fact, at one time, he had
`accused her of knowing that Annette was having an affair.
`
`Deputy McMillan also interviewed a person by the name of Craig Jones on January
`
`13
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`

`
`Case 3:13-cv-02396-RGJ-KLH Document 21 Filed 12/04/13 Page 14 of 25 PageID #: 1710
`
`19, 2007. Jones told McMillan that he had seen Davis's truck parked on Highway
`575 on Tuesday morning around 11:00 a.m., and that a shovel was in the bed of the
`truck. By evening, the vehicle was gone. Deputy McMillan, who is familiar with the
`area, stated that the area where Jones told him he saw Davis's truck was
`approximately 200 yards from where Annette's body was found.
`
`Deputy McMillan also interviewed Juanita Mizell. She told him that she lived on
`Newell Ridge Road (Highway 888). She stated that on Monday, January 15, 2007,
`sometime around dusk, while she was making a turn onto Highway 575 from
`Highway 888, she noticed a vehicle parked on Highway 888, parked on a bridge. The
`vehicle didn't have its lights on and the trunk was open. A person dressed in
`camouflage was standing on the rail of the bridge. The person turned and waved at
`her and she recognized the person to be the defendant. She stated that she knew
`Davis because she went to school with him. She estimated that she saw Davis around
`6:00 or 7:00 p.m. Mizell said the car was a silver car, and that it was the same model
`of car that a Chelsea Carden (an acquaintance of Mizell's) drove. Deputy McMillan
`located Carden's vehicle and confirmed that it was the same make and model as
`Annette's vehicle. Deputy McMillan testified that the bridge is approximately one to
`two football fields from the gravesite where the police found Annette's body.
`
`On cross-examination, Deputy McMillan admitted in the notes he took during
`Mizell's interview on February 1, 2007, he had not written that Mizell identified the
`man on the bridge as Davis.
`
`Davis, 47 So. 3d at 1113-1119.
`
`Upon considering Petitioner’s insufficient evidence argument, as well as the abundance
`
`of circumstantial evidence admitted at trial, the Louisiana appellate court concluded:
`
`The circumstantial evidence is overwhelming, and the verdict is amply supported by
`this record. Consider:
`
`• how unlikely it would be for a person to live in a home for days and
`not notice the sight and smell of a blood-soaked hallway;
`• how the timing of [Petitioner’s] purchase of the runner for the hall
`appears especially devious;
`• how [Petitioner’s] predictions of exonerating “signs,” closely
`followed by three self-serving letters, are about as phony as it gets;
`• how his frenetic efforts at establishing successive contradictory
`alibis worked against him;
`• how bragging to another inmate could produce nuggets of
`information known only to the killer;
`
`14
`
`

`
`Case 3:13-cv-02396-RGJ-KLH Document 21 Filed 12/04/13 Page 15 of 25 PageID #: 1711
`
`• how [Petitioner’s] actions early on were anything but those of a
`concerned husband of a missing wife;
`• how his story that Annette's car was gone Monday night was denied
`by his own sister and Richard Dunmore;
`• how unexplainable it looks for the DNA of [Petitioner] and his wife
`to be mixed together at two places in Annette's car;
`• how Juanita “Pete” Mizell identified [Petitioner] with Annette's car,
`as he was dumping something off the bridge located between the
`gravesite and his home (denied by [Petitioner]); and
`• how Annette's car was found only 200 yards from where he had left
`his truck.
`
`Id. at 1115-16. Overall, the Louisiana appellate court, applying the Jackson standard,
`
`found that the evidence was sufficient and that Petitioner’s claim was without merit. Id. The
`
`undersigned cannot say that the state court’s application of Jackson was objectively unreasonable
`
`in this regard; therefore, it is recommended that Petitioner’s claim based on insufficiency of the
`
`evidence be DENIED.
`
`B. Claim Two: Ineffective Assistance of Counsel
`
`Petitioner first argues that the “lower court failed to review Petitioner’s claim of denial of
`
`effective assistance of counsel.” [doc. # 1-2, p. 15]. Next, Petitioner argues that the trial court
`
`improperly denied him an evidentiary hearing that he needed to prove his ineffective assistance
`
`claim. Id. Petitioner also alleges that his trial counsel was ineffective for failing to: (1) subject
`
`the prosecution’s case to any meaningful adversarial testing; (2) properly prepare for trial; (3)
`
`render meaningful investigation; (4) investigate; (5) present a valid alibi defense; (6) render
`
`crucial cross examination; and (6) introduce crucial evidence for consideration. Id. at 15-16.
`
`Finally, Petitioner demands an evidentiary hearing to support these allegations. Id. at 15.
`
`i. Lower Court Review of Petitioner’s Ineffective Assistance of Counsel Claim
`
`Petitioner states, without explanation, that the lower court failed to review his claim of
`
`15
`
`

`
`Case 3:13-cv-02396-RGJ-KLH Document 21 Filed 12/04/13 Page 16 of 25 PageID #: 1712
`
`ineffective assistance of counsel. Id. Petitioner’s claim is groundless because the state appellate
`
`court (on direct review) and the trial court (on collateral review) did, in fact, consider Petitioner’s
`
`claim. [See doc. # 1-3, p. 55; # 14-6, p. 93].
`
`ii. Trial Court’s Denial of Evidentiary Hearing
`
`Petitioner claims that the state habeas corpus court improperly denied his request for an
`
`evidentiary hearing. Infirmities in state habeas corpus proceedings do not state a claim for
`
`federal habeas corpus relief. Vail v. Procunier, 747 F.2d 277 (5 Cir. 1984); see Trevino v.
`th
`
`Johnson, 168 F.3d 173, 180 (5 Cir. 1999). Accordingly, this claim is not cognizable under
`th
`
`federal habeas corpus review.
`
`iii. Ineffective Assistance of Counsel
`
`Although Petitioner lists six permutations of ineffective assistance of counsel, a closer
`
`reading of Petitioner’s Memorandum, [doc. # 1-2], reveals that Petitioner is actually alleging only
`
`the following: (1) that trial counsel failed to subject the prosecution’s case to meaningful
`
`adversarial testing by failing to effectively cross-examine the State’s witnesses; (2) that counsel
`
`did not call twent

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