Greenup v. Cain, 2:17-cv-04185

Background

Troy Greenup was indicted (2011) and convicted by a Jefferson Parish jury (2012) of aggravated rape of his son D.B. (acts alleged to have occurred when victim was ~3–5 years old); sentenced to life without parole.
The jury returned a 10–2 guilty verdict; one juror voted "No" and one wrote "Yes but a less charge." Defense counsel accepted recording the verdict as 10–2.
Prosecution presented: victim testimony, a CAC recorded interview, and testimony of forensic nurse Anne Troy (no physical findings, explained by delay in disclosure). The State also introduced evidence of an alleged sexual battery of a different child (L.T.) as other-crimes/propensity evidence under La. Code Evid. art. 412.2.
Greenup pursued direct appeal (claims about admission of L.T. evidence and rebuttal argument), post-conviction relief (ineffective assistance / conflict of interest / incomplete record / out-of-time appeal), and state writs; state courts denied relief, applying Strickland and state evidentiary law.
Greenup filed a federal habeas petition asserting: multiple ineffective-assistance claims, trial-court error denying out-of-time appeal, erroneous admission of other-crimes evidence, and prosecutorial misconduct in rebuttal. Magistrate Judge recommended dismissal with prejudice, concluding state decisions were reasonable under AEDPA.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance — failure to object to jury polling/verdict anomaly	Counsel should have further polled, objected, or moved for mistrial over juror "Yes but a less charge."	Verdict valid as recorded 10–2; further challenge would be futile under La. law (10 juror concurrence).	Denied — counsel not deficient; no prejudice; state courts reasonably applied Strickland.
Ineffective assistance — failure to object to/shore up State expert and failure to retain defense expert	Counsel should have sought Daubert hearing, contested Troy's qualifications, or hired a rebuttal expert to undermine her conclusions.	Troy was well qualified; Daubert unnecessary; hiring a defense expert was speculative and cross-examination was adequate trial strategy.	Denied — state courts reasonably found no deficient performance and no prejudice.
Conflict of interest / meaningful adversarial testing (trial & appellate counsel)	Investigator’s contact with victim’s mother (in separate L.T. matter) led to D.B.’s disclosure; counsel had a conflict and appellate counsel should have raised it.	No multiple representation or actual conflict; Greenup knew facts and did not object; counsel vigorously represented client; appellate counsel not ineffective for not raising weak claim.	Denied — no actual conflict/adverse effect shown; Strickland applies and was reasonably applied by state courts.
Out-of-time appeal / incomplete record	Discrepancies and missing bench-conference transcripts prejudiced appellate review and warrant out-of-time appeal.	Missing portions were immaterial to the issues on appeal; no actual prejudice demonstrated.	Denied — petitioner failed to show prejudice from incomplete record; claim without merit.
Admission of other-crimes evidence (L.T.)	Evidence was unduly prejudicial and not probative; should have been excluded.	Evidence admissible under La. Code Evid. art. 412.2 to show lustful disposition, opportunity, modus operandi; limiting instruction minimized prejudice.	Denied — state appellate court reasonably concluded probative value outweighed prejudice; admission did not render trial fundamentally unfair.
Prosecutorial misconduct — rebuttal argument (use of inflammatory language)	Prosecutor’s hypothetical and slur (“faggot”) were prejudicial and denied fair trial.	Remarks were responsive to defense theme attacking victim credibility; limited rebuttal; not intended to inflame bias.	Denied — comments were isolated, not pervasive; did not render trial fundamentally unfair under Darden standard.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (two-part ineffective assistance standard)
Williams v. Taylor, 529 U.S. 362 (AEDPA deference and review of state-court decisions)
Harrington v. Richter, 562 U.S. 86 (deference to state-court Strickland determinations)
Darden v. Wainwright, 477 U.S. 168 (standard for prosecutorial-misconduct due-process claims)
Cuyler v. Sullivan, 446 U.S. 335 (presumed prejudice rule for conflicts in multiple representation)
Cullen v. Pinholster, 563 U.S. 170 (§2254(d)(1) review limited to state-court record)
Jones v. Barnes, 463 U.S. 745 (appellate counsel need not raise every nonfrivolous issue)
Enjady v. United States, 134 F.3d 1427 (propensity evidence and probative value under Rule 413)