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Fifth Circuit Affirms Habeas Relief Granted to Capital Defendant Where Counsel Failed to Impeach State’s Pivotal Wit-ness with Available Forensic Evidence

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit affirmed the U.S. District Court for the Eastern District of Louisiana’s grant of habeas relief to a capital defendant where defense counsel failed to impeach the State’s pivotal witness with available forensic evidence.

Jarrell Neal, his half-brother Zannie Neal, and his uncle Arthur Darby drove to the home of Claudette Hurst in Metairie, Louisiana. (Note: The Neal brothers will be identified by their first names to avoid confusion.) Two of the men entered Hurst’s home where one of them shot and killed Fergus Robinson and Greg Vickers.

The three men drove away in a black Toyota 4-Runner. A nearby Jefferson Parish Sheriff’s deputy heard the gunshots and saw the Toyota fleeing the residence. During the ensuing pursuit, Jarrell leaned out the passenger’s window and fired at the deputies with a semiautomatic rifle. He fell from the window and was apprehended. After the Toyota crashed, Darby and Zannie were apprehended. At the time of their arrests, Darby wore a black sweater and jeans, while Jarrell wore khaki pants. Darby was thin, and Jarrell wasn’t. Firearms testing demonstrated that the rifle fired at the deputies was the same rifle used to kill Robinson.

The three men were indicted for first degree murder. Darby agreed to testify against the Neal brothers in exchange for a 20-year sentence on manslaughter. Darby testified that he remained in the Toyota while the Neal brothers entered Hurst’s home, with Jarrell carrying the rifle. He testified it was Jarrell who fired the rifle inside the home.

However, Hurst testified that she saw a tall, thin man dressed in black clothing aiming a rifle at Vickers before she fled into her bedroom. She also testified that she was acquainted with Jarrell prior to the killings, and she did not see him in her home on the night of the shootings.

Jarrell’s attorney waived opening statement and did not present any evidence. The jury apparently believed Darby over Hurst, finding Jarrell guilty of two counts of first degree murder. After he was sentenced to death, Jarrell timely appealed. His judgment was affirmed in 2001. Jarrell then petitioned, pro se, for postconviction relief.

In 2011, appointed counsel supplemented Jarrell’s petition with a claim that defense counsel was ineffective (“IAC Claim”) for failing to impeach Darby with forensic evidence that included: (1) a serology report indicating the possible presence of blood on Darby’s shoes on the night of the murders, invalidating his claim that he remained in the Toyota; (2) a report showing that Jarrell’s shoes were excluded as the source of a bloody print found at the scene, while Zannie’s shoes could not be excluded; and (3) Darby’s prior inconsistent statement where he told police that Jarrell did not have the rifle when he entered Hurst’s home.

In 2013, the state district court dismissed Jarrell’s petition without a hearing. The judge stated that the manner in which Jarrell’s attorney had used the evidence (or failed to do so) was the result of a “strategic decision.” The Louisiana Supreme Court subsequently denied Jarrell’s petition without providing its rationale.

In 2016, Jarrell petitioned the U.S. District Court for the Eastern District of Louisiana for habeas relief under 28 U.S.C. § 2254. Ultimately, the District Court granted Jarrell’s petition based on his IAC Claim and ordered the State to retry him within 120 days or release him from custody. The State timely appealed.

The Fifth Circuit observed that, pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a state prisoner may be granted relief in a federal habeas petition only on claims first exhausted in state court, 28 U.S.C. § 2254(b), and only when a claim meets one of the narrow exceptions of § 2254(d):

“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State Court shall not be granted with respect to any claim that was adjudicated on the merits in State Court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.” § 2254(d)(1) and (2).

Furthermore, a state court’s factual determinations are entitled to a mandatory rebuttable presumption of correctness: “In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a state court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” § 2254(e)(1).

Claims presenting only questions of law are reviewed under § 2254(d)(1). A petitioner satisfies the “contrary to” standard of § 2254(d)(1) only if he or she demonstrates the state court decision “arrive[d] at a conclusion opposite to that reached by the Supreme Court on a question of law or if it resolve[d] a case differently than the Supreme Court has on a set of materially indistinguishable facts.” Langley v. Prince, 926 F.3d 145 (5th Cir. 2019) (en banc). Satisfying the “unreasonable application” standard of § 2254(d)(1) requires the petitioner to demonstrate “the state court was so wrong that the error was well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.” Id.

Claims presenting only questions of fact are reviewed under §§ 2254(d)(2) and (e)(1). The reviewing court must apply the rebuttable presumption of correctness to each disputed factual determination of the state court. Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001). The required deference to the state court’s factfinding precludes a federal court from setting “aside reasonable state-court determinations of fact in favor of its own debatable interpretation of the record.” Rice v. Collins, 546 U.S. 333 (2006). Claims presenting questions of law and questions of fact are reviewed under the relevant subsections, i.e., the state court’s ultimate legal conclusion is reviewed under § 2254(d)(1), but the factual findings supporting that conclusion are reviewed under §§ 2254(d)(2) and (e)(1). Austin v. Davis, 876 F.3d 757 (5th Cir. 2017). This includes both express and implicit findings of fact. Ford v. Davis, 910 F.3d 232 (5th Cir. 2018).

Finally, under the AEDPA, even where a petitioner overcomes all of these daunting hurdles, he or she is not automatically entitled to habeas relief. The petitioner must still convince the habeas court that “law and justice” require the granting of the writ. Brown v. Davenport, 142 S. Ct. 1510 (2022).

In the present case, the State argued that “the district court erred by disregarding the state postconviction court’s factual determination that trial counsel acted strategically.” Jarrell asserted the State had waived the argument by failing to raise it in the district court.

The Court first addressed the waiver argument. The Langley Court had held § 2254’s standard cannot be waived or forfeited because of its mandatory language. With regard to § 2254(e)(2), the U.S. Supreme Court had held “[w]here Congress has erected a constitutionally valid barrier to habeas relief, a court cannot decline to give it effect.” Shinn v. Ramirez, 142 S. Ct. 1718 (2022). Further, it “is generally understood that deferential review standards under §§ 2254(d) and (e)(1) may not be waived by the government.” Brian R. Means, Federal Habeas Manual, section 3:97 (2022).

But the presumption of correctness by the state court may be rebutted with clear and convincing evidence. Post-trial, Jarrell’s attorney swore in a declaration “I did not review the physical or forensic evidence in the case, and I did not use any experts in preparation for the trial.” The attorney did not recall receiving the serology and shoeprint evidence before trial but stated he would have used them at the trial if he had. As for Darby’s prior inconsistent statement, Jarrell’s counsel was not provided a transcript. At trial, the prosecutor fought even providing a tape recording of Darby’s police interview. The trial judge ordered defense counsel to listen to the tape recording during a recess.

The Court agreed with the District Court that defense counsel’s uncontroverted sworn declaration provided clear and convincing evidence that his failure to use the forensic evidence to impeach Darby was not the result of a strategic decision. This was all the more apparent since Jarrell’s defense theory was that Darby was lying. Use of the evidence would have only served to bolster that defense, and there was no strategic reason in failing to use the evidence in light of the other evidence pointing to Darby as the killer.

The Court concluded that defense counsel’s performance was deficient because his failure to use the evidence was not the result of a reasonable defense strategy. Strickland v. Washington, 466 U.S. 668 (1984). Jarrell was prejudiced by the error because there was a reasonable probability that the outcome of his trial would have been different if not for his attorney’s deficient performance, i.e., he could have been convicted of a lesser offense and would not have been sentenced to death. Id. Thus, the Court concluded that law and justice require issuance of the writ.

Accordingly, the Court affirmed the order of the District Court. See: Neal v. Vannoy, 78 F.4th 775 (5th Cir. 2023).  

 

Editor’s note: Anyone with a particular interest in an ineffective assistance of counsel claim as the basis for § 2254 habeas relief is encouraged to read the Court’s full opinion, which provides a useful discussion of the governing law and systematic application to the facts of the case. 

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