Case Information
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA GARY L. WORKMAN CIVIL ACTION VERSUS NO. 18-13175 JASON KENT, WARDEN SECTION “H”(2)
REPORT AND RECOMMENDATION
This mаtter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases. Upon review of the entire record, I have determined that a federal evidentiary hearing is unnecessary. See 28 U.S.C. § 2254(e)(2). For the following reasons, I recommend that the instant petition for habeas corpus relief be DENIED and DISMISSED WITH PREJUDICE . I. STATE COURT PROCEDURAL BACKGROUND
The petitioner, Gary L. Workman, is incarcerated in the Dixon Correctional Institute in Jackson, Louisiana. [2] On June 5, 2012, Workman was charged by bill of information in Jefferson Parish with one count of attempted aggravated rape of a twelve year old juvenile in violation of La. Rev. Stat. § 14:27 and § 14:42. [3] On July 19, 2012, the State filed an amended bill of information adding three counts of distribution and one count of possession of pornography involving juveniles under the age of thirteen in violation of La. Rev. Stat. § 14:81.1. [4] On January 25, 2014, the bill was amended to correct the dates related to the child pornography counts. [5] The Louisiana Fifth Circuit Court of Appeal summarized the facts determined at trial as follows in relevant part:
Detective Jessica Cantrell Zuppardo of the Kenner Police Department testified that an anonymous tip was reported to her office concerning an advertisement published on the online website “Craig’s List.” Detective Zuppardo testified that the advertisement was found in the personal section, under “Casual Encounters,” and was titled “Somebody’s Daughter.” After clicking on the title, the content of the advertisement read: “[e]very woman is somebody’s daughter. Do you have a daughter you could bring to me? I’d love to do somebody’s daughter.” Based on the language used in the advertisement, Detective Zuppardo contacted Special Agent Jamie Hall of the Federal Bureau of Investigations (FBI), who took over the investigation. Detective Zuppardo testified that she again became involved in the investigation when Agent Hall set up “a meet” with defendant in April of 2012. Detective Zuppardo explained that Agent Hall had arranged for defendant to meet, what defendant believed to be, a twelve-year-old girl to have sex with at a specified location in Kenner. Detective Zuppardo and Agent Hall set up surveillance near 2850 Idaho Avenue—the apartment complex address defendant was provided, and waited fоr defendant to arrive. Detective Zuppardo testified that Special Agent Tim Lucas followed defendant when defendant left his residence. Defendant’s vehicle proceeded down Idaho Avenue at which time a traffic stop was effectuated in front of the apartment complex by Kenner Police Officer Ethan Hales. Defendant was placed in custody and an inventory search of his vehicle was performed. Inside his vehicle a post-it note, which had the address of the apartment complex on Idaho Avenue written on it, was tom in half and recovered from the passenger side floorboard.
Defendant was transported to the Kenner Police Department where he was interviewed by Detective Zuppardo and Agent Hall. Prior to interviewing defendant, Detective Zuppardo testified that defendant was read his Miranda rights from an Advice of Rights Form, which defendant signed, waiving his rights. Detective Zuppardo stated that she did not force, coerce or promise anything to defendant in exchange for his statement. She further stated that Agent Hall also provided defendant with an FBI Advice of Rights Form. Detective Zuppardo explained that Agent Hall, as the primary interviewer, asked the questions during the interview while she took notes. She testified that during the interview defendant admitted to posting the reported advertisement on Craig’s List and further admitted to having contact with a man by the name of “Savage” who was actually undercover Special Agent Hall. Defendant also admitted to sending a picture of his niece getting out of the shower and other child pornography via email to Agent Hall. Defendant stated that he used the directions provided by Agent Hall to drive to the apartment complex on Idaho Avenue with the intent of trying to have sex with a twelve-year-old girl. Specifically, defendant stated “[i]f I couldn’t have sexual intercourse, then I wouldn’t want to do anything else with the girl.” Defendant admitted to owning a personal computer and admitted to having sent child pornography through several different sources in the past. He further stated that at one time, he attempted to make contact with an eleven-year-old girl through a man named “Ron Anderson,” who had previously sent defendant child pornography. Miranda v. Arizona,384 U.S. 436 ,86 S.Ct. 1602 ,16 L.Ed.2d 694 (1966). Special Agent Jamie Hall of the FBI testified that he was contacted by
Detective Zuppardo concerning an anonymous tip reported to the Kenner Police Department regarding a posting on Craig’s List. Agent Hall testified that he investigated the posting further because he believed that the person who posted the advertisement was looking for someone under the age of sixteen based on the phrase “a daughter you could bring to me,” implying the daughter would not be of driving age. Through the link provided in the advertisement, Agent Hall replied to the post using the moniker “Savage.” The person replied back to Agent Hall using the moniker “Kyabeah.” Agent Hall testified that the email communications between the two of them lasted approximately one month, and included the transmittal of several images he deemed to be child pornography.
Agent Hall explained in detail his email conversations with defendant. He testified that he initiated contact with defendant by responding to his post with the following: “what are you looking for, in particular? I may have something.” Eventually, over the course of several email correspondences, Agent Hall testified that defendant confirmed his intent by stating, “[a] guy I met online was wanting me to break in his 11–year old daughter. Something like that?” When asked what happened with the eleven-year-old, defendant replied that he would have “gone through with it,” but the person stopped communicating. Defendant then asked Agent Hall, “[s]o you got someone we can ... you know?” Due to the sexual nature of the previous email correspondences, Agent Hall explained that he believed defendant was requesting that he provide him with a minor to have sex with. Thus, Agent Hall responded that he “might have access to a 12–year–old girl,” and later inquired as to what defendant would want to do to her. Defendant responded with his intent to have oral and vaginal sex with the minor. Specifically, defendant stated that he wanted to “lick her little c* *t then have her suck me, then cum inside her p* * *y.” Agent Hall then asked defendant if he had any pictures or videos from other similar “escapades” to which defendant replied, “[n]ot on my own. Some a guy sent me.” Throughout their correspondence, Agent Hall testified that in total, defendant sent him five emails containing various images: one depicting a clothed juvenile, one depicting a naked juvenile from behind (sent twice), and three PDF images containing two pictures each of child pornography. In later correspondence, defendant emailed Agent Hall stating, “I think I remember you saying you may has (sic) access to a 12–year old.” Facilitating defendant’s opportunity for him to act on his intent, Agent Hall responded, “[i]ndeed, I do have access to have a 12–year old.” Defendant then replied, “[y]ou share?” to which Agent Hall posed the question, “videos?” Defendant responded, “[w]ell that, too. I was talking about sharing the 12–year–old” and “does she like you doing her, or is it something forced on her?” Defendant later stated, “would you like to watch me f* * * her?” prompting Agent Hall to respond, “[y]our call on that.” Defendant then questioned, “[w]ould she let me? When can we do it?” and provided his dates of availability. At this point, an administrative subpoena was obtained to secure defendant’s IP
address so that his physical location could be identified. The administrative subpoena was returned, identifying defendant and his location where FBI agents were sent to conduct surveillance. A search warrant was prepared based on these images. Additionally, the image of
the nude female juvenile, facing away from the camera, and two of the three PDF images were later recovered from defendant’s computer.
A time and date were arranged and defendant was provided the address to an apartment complex located at 2850 Idaho Avenue, apartment 211. Defendant was apprehended in front of the designated meeting location and transported to the Kenner Police Department where he provided a statement. Agent Hall confirmed that defendant was read his Miranda rights twice, both by Detective Zuppardo and himself, and that defendant waived them prior to giving his statement. Agent Hall testified that prior to the interview he informed defendant that federal law prohibits lying to a federal agent during a federal investigation. Defendant then proceeded to tell Agent Hall that he went to the address on Idaho Avenue to meet someone by the name of “Savage,” whom he believed was offering him a twelve-year-old girl to have sex with; however, he further stated that he intended on calling the police when he arrived if the invitation turned out to be true. Once confronted with portions of the email correspondences between himself and “Savage,” defendant admitted to posting the Craig’s List advertisement and communicating with a man named “Savage” whom he believed lived in the apartments on Idaho Avenue and to whom he sent six child pornographic images to. He admitted that one of the photographs was of his niece getting out of the shower, and one of the images was of a yоung girl lying on her back with an adult male ejaculating on her.
Defendant further confessed that he went to the apartment complex on Idaho Avenue to have sex with a twelve-year-old female and that he was planning on going through with it but that if he could not “get it up he would have left and done nothing else.” He explained that he wrote down the Idaho Avenue address on a post-it note which was on the floorboard of his truck. He also stated that he had sent child pornography to more than one person on previous occasions. Defendant further indicated that he had been in contact with a person named Ron Anderson who had an eleven-year-old girl that he was trying to get defendant in touch with for the purpose of having sexual intercourse. At the end of the interview, defendant stated that he wanted to “veer away from becoming a pedophile” and begged Agent Hall and Detective Zuppardo to let him go, promising that he would never do it again. Agent Hall testified that a federal search warrant was issued for defendant’s residence and upon execution of the warrant, defendant’s computer was seized. The images found on defendant’s computer were forwarded to the National Center for Missing and Exploited Children who identified at least three of the minor victims in the images.
Special Agent Timothy Lucas of the FBI testified that he conducted surveillance on defendant and reported to Agent Hall when defendant was en route to the designated meeting place. Agent Lucas testified that defendant left his residence approximately five minutes after the meeting location was provided to him. He further testified regarding the route used by defendant to get to the specified location, which was approximately five miles from defendant’s residence. After defendant was stopped in front of the meeting location, Agent Lucas, pursuant to a search warrant, performed a search of defendant’s residence from which a computer and scanner were seized.
Computer forensic examiner expert Special Agent Lawrence Robinson of the FBI testified regarding the evidence he obtained from a “USB thumb drive” and a hard drive from the “Compaq computer” seized from defendant’s residence. He testified that he processed the content of the seized evidence into a “user-friendly format” so Agent Hall could review the material and “bookmark” the information pertinent to the investigation. Agent Robinson then drafted a report with the bookmarked information found to be relevant by Agent Hall. The pertinent images found on defendant’s hard drive were described and shown to the jury. Agent Robinson further testified that the computer user name used to view and/or generate the images was “Kyabeah.” Agent Robinson confirmed that several of the images at issue were scanned onto defendant’s computer in March of 2012.
Defendant testified that in 2012, he was conducting research on human behavior. While researching, he responded to a “chat” from someone using the moniker “Koala 211” or “215” from New Zealand. He testified that the man sent him icons, which he saved to his computer, not knowing their content. Once he opened the images and discovered they contained child pornography, he stated that he deleted them. Sometime later, while conducting maintenance on his computer, he learned that the images still existed. He testified that he attempted to permanently delete the photographs but that they reappeared. At some point, he downloaded the photographs, printed them, and re-submitted them under a new file named “Koala New.” He testified that he was told that if a file is renamed, it can then be permanently deleted. He believed the images were finally deleted when he received a message that stated, “file no longer exists.” Defendant denied that he was into child pornography and stated that he has never purchased child pornography magazines or videos.
Defendant testified that he posted an advertisement on Craig’s List as part of his behavioral research. He explained that the posting was intended to attract adults and that he never intended to attract a child. He stated that he received a few responses to the posting, including one from “Ron Anderson” and another male, “Endavin,” who told defendant that he had been molested by his brother. Defendant met Endavin in person who relayed his history of sexual abuse to defendant. Three weeks later, he stated that he learned from Endavin that there were children being abused in “New Denham Springs,” Louisiana. He testified that he also received another response to his posting by someone named “Savage,” who at the time he believed was connected to “Endavin” and might have been the same person he had had previous contact with (who’s moniker was “Seattle 038 a/k/a Hot Tot Boy”), and who defendant knew to be into child pornography. Endavin responded to a different posting by defendant under the title “[s]omething
taboo.”
Defendant testified that his intent in responding to Savage was to find out if “Savage” was the same person as “Seattle 038.” In order to gain the confidence of “Savage,” defendant explained that he sent a photograph of a girl in clothing. He testified that he could not explain how the photographs he received from “Koala” containing the child pornographic images were sent to “Savage” because he did not remember sending them, and thought that they could not be sent because they had been deleted. Defendant admitted to sending photographs of adult women to “Savage.” He further denied having the intent to have sex with a twelve-year-old girl when he went to the address on Idaho Avenue. He stated that his intent was to see if the address was real and did not plan to stop or go inside. He testified that he was afraid that “Savage” was molesting children and did not want to “falsely accuse anyone” so he wanted to verify the address before reporting “Savage” to the police. Defendant testified that he attempted to explain the situation to Agent Hall but was told, on two occasions, that it is a federal crime to lie to a federal agent. He denied admitting that he intended on going to the address to have sex with a twelve-year-old. He also denied intentionally intending to distribute child pornography.
State v. Workman, 170 So.3d 279, 283–87 (La. App. 5th Cir. 2015); State Record Volume 6 of 12, Louisiana Fifth Circuit Court of Appeal Opinion, 14-KA-559 at pp. 4–12, April 15, 2015.
Defense counsel filed a motion to suppress petitioner’s statement on June 12, 2012. [6] Workman filed a similar pro se motion to suppress his statement on March 26, 2013. [7] A hearing was held on February 25, 2014, after which the trial court denied both motions to suppress. [8]
Workman was tried before a jury on February 26 through 27, 2014 and was found guilty of all five counts. [9] On March 6, 2014, petitioner filed a motion for new trial. [10] On March 10, 2014, the state trial court denied the motion and sentenced Workman to fifteen years in prison as to count one; ten years in prison as to counts two, three and four; and five years in prison as to count five, with counts one through four to be served consecutively and count five to be served concurrently, for a total of forty-five (45) years at hard labor and without the benefit of parole, probation or suspension of sentence. [11]
On direct appeal to the Louisiana Fifth Circuit, Workman’s appointed counsel
asserted three errors: (1) The trial court erred in denying his motion to suppress his
statement. (2) The evidence was legally insufficient to convict him. (3) The trial court
imposed an excessive sentence.
[12]
On February 17, 2015, Workman filed a pro se brief
again claiming that the trial court erred in failing to suppress his statement and asserting
three additional errors: (4) Prosecutorial misconduct should have resulted in a mistrial.
(5) The trial court should have found entrapment. (6) The trial court erred in instructing
the jury regarding attempt.
[13]
Workman filed a second pro se brief on February 28,
2015.
[14]
On April 15, 2015, the Louisiana Fifth Circuit affirmed the convictions and
sentences, finding the alleged prosecutorial misconduct waived and the remaining claims
without merit, but remanding the case for the Uniform Commitment Order to be
corrected to reflect the correct adjudication date and the dates of the offenses for counts
two, three and four.
[15]
The trial court amended the Uniform Commitment Order as
directed on April 15, 2015. The Louisiana Supreme Court denied Workman’s related
writ application without stated reasons on March 24, 2016.
[17]
Workman’s conviction became final on June 22, 2016, ninety (90) days after the
Louisiana Supreme Court denied his first writ application, which is when the time
expired for Workman to file a petition for writ of certiorari with the United States
Supreme Court. Roberts v. Cockrell,
On November 15, 2016, Workman filed an application for post-conviction relief with counsel, in which he asserted the following claims: (1) ineffective assistance of counsel for failing to investigate, present a defense, adequately prepare for trial and provide copies of essential reports to Workman prior to trial; and (2) ineffective assistance of appellate counsel for failing to assign as error admission of inadmissible evidence at trial. [18] The state trial court dismissed the application without prejudice for failure to use the mandatory uniform application. [19] Workman, through counsel, refiled his application on December 15, 2016. [20] The state trial court denied relief on February 1, 2017, finding no merit to his ineffective assistance of counsel claims. [21]
On July 14, 2016, the Louisiana Fifth Circuit denied Workman’s writ application filed with counsel, finding no merit to his ineffective assistance of counsel claims. [22] On October 29, 2018, the Louisiana Supreme Court denied Workman’s writ application, finding that he had failed to show ineffective assistance of trial and appellate counsel under Strickland v. Washingtоn, 466 U.S. 668 (1984). [23] On October 29, 2018, the Louisiana Supreme Court declined to consider Workman’s pro se writ application, finding it not timely filed pursuant to La. S.Ct. R. X § 5. [24]
In the interim, Workman filed a motion for concurrent and coterminous judgments, which was denied on June 12, 2017. He also filed a motion to correct an indeterminate sentence, but the record does not include the disposition of that motion. [26] II. FEDERAL HABEAS PETITION
(A) Background
On December 13, 2018, the clerk of this court filed Workman’s petition for federal habeas corpus relief in which he asserts the following grounds for relief: (1) The trial court erred in denying his motion to suppress his statement. (2) Insufficient evidence supports his convictions. (3) The State committed prosecutorial misconduct. (4) He received ineffective assistance of trial counsel for failing to (a) investigate the case; (b) subpoena an expert in computer forensics and Workman’s siblings; (c) provide Workman with vital documents during and prior to trial; (d) file pretrial motions to quash, to suppress the evidence and to compel the State to produce proof of the complaint or tip and the e-mail about the eleven-year-old in Mississippi; (e) request Brady evidence; (f) object to illegally obtained inadmissible evidence; and (g) challenge the “fake” file sent by Agent Hall to Workman. (5) He received ineffective assistance of appellate counsel for failing to assign as error the introduction of evidence relating to erotic images. (6) The trial court erred in holding as a matter of law that there was no entrapment. [27]
The State filed an answer in response to Workman’s petition in which it concedes that the federal petition is timely and that Workman exhausted all of his claims. [28] The State argues that Workman’s third claim is procedurally barred and the remaining issues are without merit.
(B) Petitioner’s Preliminary Motions
Workman filed several motions seeking discovery and a more definite statement. [29]
On May 14, 2019, I denied his request for a more definite statement and dismissed without prejudice as premature petitioner’s requests for discovery and production of exhibits. [30] Having fully reviewed the record, I find that discovery and further production of the state court record is not warranted for the following reasons.
As an initial matter, Workman seeks discovery of stored electronic communications related to this case. [31] Workman claims there are missing e-mails and evidence, particularly e-mails relating to an eleven-year-old girl in Mississippi who was allegedly being sexually abused. He also seeks a copy of the affidavit and order allowing electronic surveillance under La. Rev. Stat. § 15:1310. In addition, he seeks documentation supporting law enforcement personnel’s claim that they received an anonymous tip about an advertisement on Craig’s List which led them to discover Workman’s advertisement.
Workman’s filings show that he made multiple requests for documents pursuant to the Freedom of Information Act. [32] Petitioner admits that, in response to his requests, the Federal Bureau of Investigation provided him with one hundred and twenty (120) pages of its one hundred and sixty-nine (169) page file, apparently withholding forty-nine (49) pages under 5 U.S.C. §§ 552(a) and (b). [33] Workman further concedes that his representative was able to review and retrieve copies of documents from the Jefferson Parish District Attorney’s Office file and that he received e-mail evidence, although the evidence did not include an e-mail about the eleven-year-old girl. [34] In a written response to one of his records requests, the Louisiana Department of Justice stated that, “[a]fter a diligent search, our office has been unable to locate any records pertaining to your inquiry”for “a copy of the affidavit and application for the order authorizing or approving the interception of any wire, electronic, or oral communication and the district attorney’s report to the attorney general and the attorney general’s report to the judicial administrator” of the [Louisiana] [S]upreme [C]ourt for “electronic surveillance.”
La. Rev. Stat. § 15:1310, Louisiana’s Electronic Surveillance Act (“the Act”), which sets out the procedures law enforcement must follow to judicial authorization of electronic surveillance, also known as a wiretap, has no application to this case because there was no interception of electronic or wire communications. Agent Hall, working in an undercover capacity, and Workman communicated via e-mail. Therefore, judicial authorization under the Act was not required and, as Workman has already been advised, neither an affidavit seeking authorization nor an order granting authorization to conduct electronic surveillance exists. After Workman was arrested, a search warrant was obtained to search Workman’s residence, and his computer was seized. The warrant and the supporting affidavit are part of the state court record and copies were attached as an exhibit to Workman’s state application for post-conviction relief.
While Workman seeks documentary evidence demonstrating that law enforcement received a call about his Craig’s List advertisement, nothing in the record supports a finding that such evidence exists. What does not exist cannot be produced. Detective Zuppardo [37] testified that Kenner Police Department Headquarters received an anonymous tip from a concerned citizen concerning a Craig’s List advertisement that the person felt should be investigated. [38] Zuppardo did not personally receive the call, but she was informed of it, and, since the caller wished to remain anonymous and did not want to make a report, she did not know the name of the caller. [39] Agent Hall testified that Detective Zuppardo told him she received a complaint about a Craig’s List advertisement and that “someone called in and wanted law enforcement to look into the matter.” [40] There is no evidence that the anonymous tip was actually documented in a report or that any such report was withheld from pretrial discovery.
For the foregoing reasons, Workman’s motion for production of electronically stored communications, Record Doc. No. 9, and motion for leave to request discovery, Record Doc. No. 14, are DENIED.
Workman’s remaining motions seek the state court record filed by the State with its response to his petition, together with any exhibits and an index. [41] Workman claims he cannot adequately prepare a traverse without these documents, including the complete trial and related transcripts.
The State filed a twelve (12) volume state court record in response to my December 14, 2018 order. [42] The state court record is produced to the court separately under separate cover and is not an attachment to the State’s answer. In its response, the State did not cite any portions of the state court record, other than the opinions and orders of the state trial court, the Louisiana Fifth Circuit and the Louisiana Supreme Court, [43] all of which Workman attached as exhibits to his habeas petition. [44] The State’s response included no exhibits. [45] Thus, Workman already has everything in the record relied upon or cited by the State. He has not shown that he is entitled to a copy of the entire state court record filed with the court, and his motions, Record Doc. Nos. 15 and 16, are therefore DENIED. [46]
III. GENERAL STANDARDS OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.
No. 104-132, 110 Stat. 1214, comprehensively revised federal habeas corpus legislation,
including 28 U.S.C. § 2254. The AEDPA went into effect on April 24, 1996, and applies
to habeas petitions filed after that date. Flanagan v. Johnson,
The threshold questions in habeas review under the amended statute are whether
the petition is timely and whether petitioner’s claims were adjudicated on the merits in
state court; i.e., the petitioner must have exhausted state court remedies and must not be
in “procedural default” on a claim. Nobles v. Johnson,
1997) (citing 28 U.S.C. § 2254(b), (c)). The State concedes and I find that Workman’s petition was timely filed. The State has asserted the defense of procedural default based on the presentation and disposition of his third claim in the state courts.
IV. EXHAUSTION DOCTRINE AND PROCEDURAL DEFAULT
“A fundamental prerequisite to federal habeas relief under § 2254 is the exhaustion
of all claims in state court prior to requesting federal collateral relief.” Whitehead v.
Johnson,
delivery to the court is considered the time of filing for limitations purposes. Coleman v. Johnson, 184
F.3d 398, 401 (5th Cir. 1999), cert. denied,
“The exhaustion requirement is satisfied when the substance of the federal habeas
claim has been fairly presented to the highest state court.” Id. (citing Picard v. Connor,
“A federal сourt claim must be the ‘substantial equivalent’ of one presented to the
state courts if it is to satisfy the ‘fairly presented’ requirement.” Whitehead,
A. FAILURE TO EXHAUST
To exhaust review of his claims in the state courts, Workman must have fairly presented the same claims and legal theories he urges in the instant petition to this federal court to the state courts in a procedurally proper manner and have given all appropriate state courts an opportunity to address each of his claims, either on direct appeal or in post-conviction proceedings through the Louisiana Supreme Court. In this case, the State concedes and I find that Workman has exhausted state court review of some of his claims. However, for the reasons that follow, Workman has defaulted any review of five portions of his ineffective assistance of trial counsel claims and his claims are considered technically exhausted.
Workman has asserted multiple grounds for relief related to his claim of ineffective assistance of trial counsel. The State claims that Workman properly exhausted his claims of ineffective assistance of trial counsel. Having reviewed Workman’s application for post-conviction relief and his writ applications filed in the Louisiana Fifth Circuit Court of Appeal and the Louisiana Supreme Court, I find that Workman failed to exhaust review in a procedurally proper manner of five portions of his ineffective assistance of counsel claims concerning failure to present the testimony of his siblings at trial, file pretrial motions, request Brady evidence, object to illegally obtained inadmissible evidence and challenge the “fake” file sent by Agent Hall to Workman.
To the extent this differs from or exceeds the defense asserted by the State, I raise
the issue of exhaustion in part sua sponte. Accordingly,
petitioner is hereby specifiсally
instructed that this report and recommendation is notice to him that this court is
addressing the issue of failure to exhaust state court remedies and that petitioner
must submit any evidence or argument concerning exhaustion as part of any
objections he may file to this report
. See Kurtzemann v. Quarterman, 306 F. App’x
205, 206 (5th Cir. 2009) (district court may sua sponte raise failure to exhaust, and notice
of and an opportunity to respond to the exhaustion issue must be given) (citing Day v.
McDonough,
I find that Workman did not raise his claims of ineffective assistance of trial
counsel concerning failure to present the testimony of his siblings at trial, file pretrial
motions, request Brady evidence, object to illegally obtained inadmissible evidence and
challenge the “fake” file sent by Agent Hall to Workman in any state court, and therefore
these claims were not exhausted in a procedurally proper manner. When ineffective
assistance of counsel is asserted, the claim is not exhausted if the petitioner did not raise
or mention the same basis or legal theory in the state court proceedings that is asserted
in a federal petition. See Ogan v. Cockrell,
B. NO REMAINING OPPORTUNITY TO EXHAUST
For the foregoing reasons, Workman has not allowed the state courts one full
opportunity to review these claims through the Louisiana Supreme Court in a
procedurally proper manner. The burden is on petitioner to assert his federal claim in the
state courts at a time when state procedural law permits its consideration on the merits.
Bell v. Cone,
The record in this case reflects that Workman is now unable to litigate his unexhausted claims in the Louisiana courts. The Louisiana Supreme Court has already advised Workman that he no longer has available post-conviction remedies:
Relator has now been fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post- conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.
State v. Workman,
Workman therefore no longer has the opportunity to present his unexhausted
claims in the state courts. A habeas petitioner who has defaulted his federal claims in
state court meets the technical requirements for exhaustion, because there are no longer
any state remedies “available” to him. Gray v. Netherland, 518 U.S. 152, 161–162
(1996); see 28 U.S.C. § 2254(b); Coleman,
I therefore find that state court review of Workman’s unexhausted claims is
technically exhausted, and the claims must be evaluated for procedural default. See
Gray,
The procedural bar created by a petitioner’s technical exhaustion stands as an
adequate and independent state procedural ground and prevents federal habeas corpus
review of a defaulted claim. Gray,
V. PROCEDURAL DEFAULT
In addition to the unexhausted claims, the state courts imposed a procedural bar to one of Workman’s other claims. Specifically, in his third federal habeas claim, Workman asserts that the state trial judge erred when he denied a motion for mistrial based on statements by the prosecutor that Workman had fabricated his defense, which Workman claims constituted prosecutorial misconduct.
On cross-examination, the prosecutor and Workman had the following exchange: [49] A: Anything. I’m just trying to get a rise out of this guy, See what he’s doing. See what he’s up to. I’m not – My intent, I know my intent.
Q. You keep saying “intent.” Why do you keep saying “intent”?
A. Because I’m trying to find out if his intent is really to do what he’s saying he’s doing.
Q. Because you’ve been sitting –Isn’t it because you’ve been sitting in jail thinking about this charge, and you know intent is what this whole case is about?
Defense counsel objected and, at a bench conference, argued: [50] We’ve gone to great lengths to show that this man is not in jail. I’ve walked to the staircase with him each time the Jury’s taken a break. We purposely don’t bring him in in orange, we don’t bring him handcuffed. For him to say he’d been sitting in jail is improper and it’s to prejudice this Jury and I’m going to move for a mistrial.
The prosecutor responded that, on direct examination, defense counsel brought up the fact that law enforcement visited Workman while he was in jail. [51] The trial court agreed that defense counsel asked Workman about Detective Rivard’s interview of him while he was in jail. [52] The trial court rejected defense counsel’s argument that his question related to when Workman was first arrested while the prosecution’s question related to two years later and explained, “There is no time frame. But he’s saying that he didn’t give a time frame when he just asked that question. Your motion is denied and your objection is overruled.” [53]
In his motion for new trial, defense counsel argued that Workman was prejudiced by the prosecutor alluding to the fact that petitioner had been in jail for two years. [54] The trial court found: [55]
With regard to point two, the action of the District Attorney, the Court would note that the Defense did mention, in examination, that Mr. Workman was in jail.
The Court would agree that the Court goes at great lengths to insure that Defendants are not prejudiced. Mr. Workman was allowed to wear civilian clothes. He was very well-dressed for the trial, and the Court believes that it’s not necessary to do that, but the Court allows that to happen.
The Court, also would note that the Jury never saw Mr. Workman escorted by police officers, they never saw Mr. Workman in shackles or handcuffs. The Court, when it considers the entire circumstances, believes that that does not rise to a level that should require a new trial.
On direct appeal, Workman asserted that the trial court should have granted a
mistrial based on the prosecutor’s suggestion that Workman had concocted his defense
while sitting in jail. The Louisiana Fifth Circuit found that Workman’s claim that a
mistrial should have been granted was based on a different basis than the one asserted at
trial. The appellate court explained that defense counsel did not make a
contemporaneous objection based on prosecutorial misconduct concerning statements
regarding Workman’s alleged fabrication of his defense but rather objected to the
comment regarding Workman sitting in jail. The appellate court found that the claim had
been waived due to failure to lodge a contemporaneous objection, citing State v. Carter,
Generally, a federal court will not review a question of federal law decided by a
state cоurt if the decision of that state court rests on a state ground that is both
independent of the federal claim and adequate to support that judgment. Coleman, 501
U.S. at 731–32; Glover v. Cain,
This “independent and adequate state law” doctrine applies to both substantive and
procedural grounds and affects federal review of claims that are raised on either direct
or habeas review. Amos,
Procedural default does not bar federal court review of a federal claim in a habeas
petition unless the last state court to render a judgment in the case has clearly and
expressly indicated that its judgment is independent of federal law and rests on a state
procedural bar. Harris,
For the state law procedural bar to prevent review by this federal habeas court, the
bar must be independent and adequate. A procedural restriction is “independent” if the
state court’s judgment “clearly and expressly” indicates that it is independent of federal
law and rests solely on a state procedural bar. Amos,
To be “adequate,” the state procedural rule must be strictly or regularly followed
and evenhandedly applied to the majority of similar cases. Walker v. Martin, 562 U.S.
307, 316 (2011); Glover, 128 F.3d at 902. A state procedural rule “can be ‘firmly
established’ and ‘regularly followed,’—even if the appropriate exercise of discretion may
permit consideration of a federal claim in some cases but not others.” Beard v. Kindler,
The last reasoned decision on Workman’s prosecutorial misconduct claim was the
Louisiana Fifth Circuit decision relying on Louisiana procedural rules governing
preservation of claims for direct appeal. See Ylst,
The state courts’ ruling was based on Louisiana law setting forth the procedural
requirements for the preservation and presentation of claims on direct appeal. See Fisher,
B. CAUSE AND PREJUDICE
A federal habeas petitioner may be excepted from the procedural default rule only
if he can show “cause” for his default and “prejudice” attributed to it, or demonstrate that
the federal court’s failure to review the defaulted claim will result in a “fundamental
miscarriage of justice.” Fisher,
To establish cause for a procedural default, a petitioner must demonstrate that
some objective factor external to the defense impeded his efforts to comply with the
state’s procedural rule. Murray v. Carrier,
Workman has not offered any cause for his failure to exhaust or present his claims in a timely and proper manner to the state courts. The record does not support a finding that any factor external to the defense prevented petitioner from asserting these claims in a procedurally proper manner. The record reflects no action or inaction by the State which prevented him from properly asserting these claims in the state courts.
“The failure to show ‘cause’ is fatal to the invocation of the ‘cause and prejudice’
exception, without regard to whether ‘prejudice’ is shown.” Hogue v. Johnson, 131 F.3d
466, 497 (5th Cir. 1997) (citing Engle,
A petitioner may avoid procedural bar only if a fundamental miscarriage of justice
will occur if the merits of his claim are not reviewed. Hogue,
The actual innocence standard encompasses three principles. First, a “credible
[actual innocence] claim requires new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that
was not presented at trial.” House v. Bell,
In this case and under these standards, Workman has not referenced or presented any new evidence of his factual innocence or any evidence that might persuade a court that no juror would have found him guilty. Accord, Golmon v. Director, TDJC-CID, WL 3724838, at *1 (E.D. Tex. Jul. 15, 2013). His contentions in support of his actual innocence claim and entrapment are part of the same defense evidence available at trial and already considered by the jury.
For these reasons, Workman has failed to overcome the procedural bar to his claims, and the foregoing claims, both actually and technically exhausted, must be dismissed with prejudice as procedurally defaulted.
VI. STANDARDS OF MERITS REVIEW
28 U.S.C. §§ 2254(d)(1) and (2) contain revised standards of review for questions
of fact, questions of law and mixed questions of fact and law in federal habeas corpus
proceedings. Nobles,
A state court’s determination of questions of law and mixed questions of law and
fact are reviewed under 28 U.S.C. § 2254(d)(1) and receive dеference, unless the state
court’s decision “‘was contrary to, or involved an unreasonable application of, clearly
established [Supreme Court precedent.]’” Penry v. Johnson,
Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.
Williams v. Taylor,
“‘A federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the state court decision applied [a Supreme
Court case] incorrectly.’” Price v. Vincent,
Wright v. Quarterman,
A. DENIAL OF MOTIONS TO SUPPRESS (CLAIM NO. 1) Workman argues that the state trial court erred in denying the motions to suppress his statement to police. He alleges that his statement was the product of fear, duress, intimidation, menaces, threats, inducements and/or promises.
Defense counsel filed a motion to suppress petitioner’s statement on June 12, 2012. [59] Petitioner filed a similar pro se motion to suppress his statement on March 26, 2013. A hearing was held on February 25, 2014, after which the state trial court denied both motions to suppress. [61]
Both Workman and his counsel asserted this claim on direct appeal. The state appellate court found that Workman was twice advised of his Miranda rights and there was no indication from the record that Workman was coerced into making his statement under the influence of “threats” made by Agent Hall. The court noted that Agent Hall’s advice to Workman of the criminal consequences of lying was not perceived as a threat, since Workman continued to be untruthful until he was presented with the e-mails regarding his wrongdoing. The court found that the trial court did not err in denying petitioner’s motion to suppress the statement, concluding that it was freely and voluntarily made and not influenced by fear, intimidation, menaces, threats, inducement or promises. This was the last reasoned state court opinion on the issue. See Ylst, 501 U.S. at 802.
The admissibility of a confession is a mixed question of law and fact. Miller v.
Fenton,
Two inquiries determine whether an accused has voluntarily and knowingly
waived his Fifth Amendment privilege against self-incrimination. Moran v. Burbine, 475
U.S. 412, 421 (1986); Soffar v. Cockrell,
The habeas corpus statute obliges federal judges to respect credibility
determinations made by the state court trier of fact. Pemberton,
Even if the confession is deemed involuntary under these standards, the Supreme
Court has held that admission of an involuntary confession into evidence is a trial error
subject to harmless error analysis. Arizona v. Fulminante,
In Workman’s case, as required by Jackson v. Denno,
On cross-examination, Hall testified that he always begins his interviews by informing the interviewee of the consequences of lying during a federal investigation, including up to a year in prison and a $250,000 fine. [72] According to Hall, Workman was initially untruthful and said he was going to the residence to see if there was actually a twelve-year-old girl at the residence and, if so, he planned to call the police. [73] Hall told Workman he believed that Workman was lying to him and reiterated that Workman could be penalized for being untruthful. [74] Thereafter, Workman admitted he was traveling to the residence to have sex with a twelve-year-old girl. [75] After hearing the testimony, the state trial court permitted use of the confession, explaining that Workman was advised of his rights, acknowledged that he understood them both verbally and in writing, and thereafter made incriminating statements. [76] The trial court found that while Hall advised Workman of the criminal consequences of lying, those statements did not constitute duress. [77]
While Workman’s counsel did not file a writ application in connection with the trial court’s adverse decision, he did raise the issue on direct appeal. The Louisiana Fifth Circuit entered its own findings, which constitute the last reasoned decision on this issue. The appellate court considered and reviewed the evidence and testimony that was received at the suppression hearing. After considering the evidence, the court held: [78]
Although defendant in the instant matter does not contest that he was properly Mirandized, it is noted that prior to interviewing defendant about the crimes for which he was arrested, defendant was twice advised of his Miranda rights both orally and in writing by Detective Zuppardo and Agent Hall. Defendant indicated that he understood his rights and signed both the FBI’s and the Kenner Police Department’s advice of rights form, waiving his rights.
Further, based on the evidence and testimony from the suppression hearing and the trial, the record is devoid of any indication that defendant was coerced into making his statement under the influence of “threats” made by Agent Hall. As stated by the trial court, “[a]lthough the agent advised him of the criminal consequences of lying, the Court believes that that does not rise to the level of duress to force Mr. Workman to tell something that is untrue.” Additionally, the record further establishes that such an advisal was not perceived as a threat to defendant who continued to be untruthful with Agent Hall until he was presented with concrete evidence in the form of the email correspondences regarding his wrongdoing. Accordingly, we find the trial court did not err in denying defendant’s motion to suppress statement, upon concluding that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement, or promises.
On federal habeas review, this court must presume that the factual determinations
of the state courts supporting its legal conclusion were correct, including that Workman
failed to demonstrate that anything Agent Hall told him amounted to unlawful
inducement or threat that compelled him to make the otherwise voluntary statement. The
same presumption applies to the court’s factual findings concerning the voluntariness of
the confession, including that Workman was advised of his Miranda rights, that he
indicated that he understood his rights and that he voluntarily waived those rights.
Pemberton,
To overcome the presumption of correctness as to the state court’s factual findings, Workman must rebut them by clear and convincing evidence. He has not done so. For the most part, Workman merely repeats his allegations of threats and coercion already addressed by the state courts. Workman asserts that the he was not informed of his rights until he was “restrained in an interrogation room and threatened with arrest if he did not answer questions” and that the interrogation “took a mental and physical toll on him due to these officers’ threats.” He further contends, for the first time, that the interrogation continued after he requested that the questioning stop so he could retain an attorney. These allegations are unsupported by any evidence adduced at the motion hearing, the trial, on appeal or otherwise.
The sole allegation by Workman supported by the record is that he was informed
of the penalties of lying to a federal agent. Allegations that law enforcement personnel
informed the defendant of the penalties of lying, in and of themselves, do not render
Workman’s statements involuntary. See, e.g., Rivers v. United States,
The state court’s factual determinations regarding voluntariness are supported by the record. Therefore, this court on habeas corpus review must accept as conclusive the state court’s factual determination that Workman’s statements were voluntary. The state court’s legal conclusion that Workman’s statements were voluntary reasonably follows from these facts. Since the statements were voluntary as a matter of fact and law, harmless error analysis is unnecessary. The denial of relief on this issue is not contrary to or an unreasonable application of Supreme Court precedent. Workman is not entitled to relief on this claim.
B. INSUFFICIENCY OF EVIDENCE & ENTRAPMENT (CLAIM NOS. 2 & 6) Workman claims that the evidence was insufficient to prove that he was guilty of the crimes of which he was convicted and that the trial court erred in holding that there was no entrapment as a matter of law. He contends that the State failed to show he had specific intent or that he was predisposed to commit the crimes before government involvement.
Workman presented these claims to the Louisiana Fifth Circuit on direct appeal.
The court considered the claims under the standards set forth in Jackson v. Virginia, 443
U.S. 307 (1979), and related state case law, and found that intent was a credibility issue
and that there was sufficient evidence from which the jury could have reasonably
concluded that Workman was guilty of attempted aggravated rape upon a victim under
the age of thirteen and possession and distribution of child pornography. The Louisiana
Fifth Circuit explained that entrapment was an issue for the jury and that, considering the
officers’ testimony and Workman’s e-mails requesting a meeting to have sex with a
twelve-year-old girl, a rational trier of fact could have found that Workman failed to
establish by a preponderance of the evidence that he was induced by a government agent
to commit the crimes for which he was convicted. This was the last reasoned opinion
by a state court on this issue. Ylst,
Under Jackson, a federal habeas court addressing an insufficiency of the evidence
claim must determine, after viewing the evidence in the light most favorable to the
prosecution, whether a rational trier of fact could have found that the essential elements
of the crime were proven beyond a reasonable doubt. Jackson,
A federal habeas court is not authorized to substitute its interpretation of the
evidence or its view of the credibility of witnesses in place of the fact-finder. Weeks v.
Scott,
A claim of insufficient evidence presents a mixed question of law and fact. Perez,
Workman was charged with and convicted of attempted aggravated rape of a child
under the age of thirteen and four counts of possessing or distributing child pornography.
At the relevant time, aggravated rape (now designated as first degree rape), was defined
in relevant part as anal, oral or vaginal sexual intercourse with a victim under the age of
thirteen. La. Rev. Stat. § 14:42(A)(4). A perpetrator has attempted aggravated rape
when, with specific intent to do so, he commits an act for the purposes of and tending
directly to accomplish one or more of the prohibited acts of intercourse. State v. German,
Louisiana law defines specific intent as “that state of mind which exists when the
circumstances indicate that the offender actively desired the prescribed criminal
consequences to follow his act or failure to act.” La. Rev. Stat. § 14:10(1). Under
Louisiana law, specific intent need not be proven directly but may be inferred from the
actions of the defendant and the circumstances surrounding those actions. State v.
Sharlhorne,
La. Rev. Stat. § 14:81.1(A)(1) provides that “ [i]t shall be unlawful for a person to
produce, promote, advertise, distribute, possess, or possess with the intent to distribute
pornography involving juveniles.” Pornography involving juveniles is a general intent
crime. State v. Cinel,
The United States Fifth Circuit Court of Appeals has outlined the substance of Louisiana law on the defense of entrapment as follows:
Under Louisiana law, “an entrapment is perpetrated when a law
enforcement official or a person acting in cooperation with such an official,
for the purpose of obtaining evidence of the commission of an offense,
solicits, encourages, or otherwise induces another person to engage in
conduct constituting such offense when he is not then otherwise disposed
to do so.” State v. Batiste, 363 So.2d 639, 641 (La. 1978) (emphasis
added). The Louisiana Supreme Court noted that its law is consistent with
federal law. Id. “In entrapment cases, a line must be drawn between the
trap for the unwary innocent and the trap for the unwary criminal.” State
v. Brand,
Jones v. Jones,
In this case, the jury heard testimony from Detective Zuppardo that the Kenner Police Department received an anonymous tip through its headquarters on March 8, 2012, advising that the police might want to investigate a certain advertisement on Craig’s List. The tipster did not want to leave a name or make a report. Zuppardo located an advertisement titled “Somebody’s Daughter” dated March 6, 2012, which stated, “Every woman is somebody’s daughter. Do you have a daughter you could bring to me? I’d love to do somebody’s daughter.” [86] Zuppardo testified that, because the advertisement asked for the daughter to be brought to the writer, it implied the daughter would not be old enough to drive. [87] Zuppardo, who was at the end of her shift, passed the information on to FBI Special Agent Jamie Hall. [88] Hall, who was working in an undercover capacity, and Workman exchanged e-mails and agreed to meet at a location in Kenner. [89] Zuppardo and Hall set up surveillance, and when they saw Workman’s car turn down Idaho Street, Agent Zuppardo radioed a police unit to conduct a traffic stop. [90] When petitioner was arrested, a blue post-it note was found torn in half on the passenger floorboard of his car with the address provided by Hall. [91] Zuppardo and Hall met with Workman at the Kenner Police Department to conduct an interview. [92] Before interviewing Workman, both Zuppardo and Hall advised Workman of his rights and he signed a form waiving them. [93] Zuppardo testified that no force or coercion was used, no promises were made and Workman never asked for an attorney. [94]
Zuppardo took notes during the interview. [95] According to Zuppardo, Workman admitted to posting the advertisement on Craig’s List, communicating with “Savage” and sending a picture of his niece getting out of the shower. [96] Workman told them that he intended to knock on the door at the Idaho residence and attempt to have sex with the twelve-year-old girl. [97] Workman said, “If I couldn’t have sexual intercourse, then I wouldn’t want to do anything else with the girl.” [98] Workman admitted to sending child pornography to “Savage” and others. [99] He mentioned a person named Ron Anderson, who Workman claimed had sent him child pornography and said he tried to make arrangements to have sex with Anderson’s eleven-year-old daughter. [100] FBI Special Agent Timothy Lucas conducted surveillance on Workman. [101] Lucas
watched Workman leave his apartment in his vehicle and, when he turned on a residential street, Lucas had Special Agent Harris take over so Workman would not realize he was being followed. [102] Lucas testified that Workman’s apartment was eventually searched pursuant to a warrant and a computer tower was seized. [103]
FBI Special Agent Lawrence Robinson, a computer forensic examiner, testified that Agent Hall asked him to image evidence on a USB thumb drive and a hard drive of a computer and create a disk of bookmarks Agent Hall found pertinent to the investigation. [104] Robinson did not examine the hard drive. [105] He categorized the files as “child erotica” and “child pornography.” [106] Robinson did not know if the images had been received by e-mail or had been downloaded from the internet directly. [107] Robinson testified that one image was located in the recycle bin, which meant the image was deleted but the recycle bin was not emptied. [108]
FBI Agent Jamie Hall testified that on March 8, 2012, Zuppardo contacted him and asked him if he could find a Craig’s List post that a concerned citizen had anonymously reported. [109] Hall found a post titled “Somebody’s Daughter.” [110] Because the person who posted the advertisement asked for a daughter to be brought to him, it indicated to Hall that the person was looking for someone under the age of sixteen. [111] Hall replied using the moniker “Savage” and asked, “What are you looking for, in particular? I may have something.” [112] Petitioner replied back, “Somebody’s daughter, you have one?” and they communicated via e-mail, exchanging a total of 94 e-mails over a one-month period. [113] Hall responded, “I may have a few options for you. I have access to a lot of things. Tell me what you want and I will see if I can help you out.” [114] Workman responded, “Like the title says, what have you got, and whose daughter?” [115] Petitioner told Hall, “You may not be into what I’m interested in doing,” and asked “Savage” if he had “some young pics.” [116] Hall asked petitioner “how young are you looking for?” and expressed confusion as to whether petitioner wanted “someone’s daughter” or photographs. [117] Workman replied that he wanted “both” and asked, “You have somebody’s daughter in mind?” [118] Workman explained that he communicated with a man online who wanted Workman to “break in his eleven year old daughter. Something like that.” [119] At that point, Hall obtained a subpoena for the IP address. [120]
According to Workman’s e-mail, Workman had intended to have sex with the man’s daughter, but the man stopped writing him and, when Workman tried to e-mail him, he got a “delivery failure” message. [121] Workman asked Hall if “you got someone we can .... you know?,” which, given all the previous e-mails, Hall understood to mean Workman was looking to have sex with a child. [122] Hall responded that a twelve–year–old girl might be available and asked Workman how he envisioned it going down and what was in it for him. [123] Workman responded he wanted to “lick her little cunt then have her suck me, then cum inside her pussy.” [124] Hall responded, “Interesting. Have any pics or vids from other escapades like that?” to which Workman replied “Not on my own. Some a guy sent me. You have any?” [125] Hall said yes and asked Workman if he traded and his preference. [126] Workman sent an image of a clothed, young girl and, Hall, in an attempt to determine if the child was in danger, asked Workman if he had access to her, to which Workman responded, “I wish. You got a pic to share?” [127]
Hall testified that, by this point, the subpoena to Cox Communications for the IP address had been returned identifying Workman. [128] When Hall inquired as to what type of picture Workman wanted, Workman responded, “you got any fucking?” [129] Hall e- mailed Workman a video in a format that would not open. [130] Workman responded that he could not get the file to open, asked how he could watch it and sent Hall a picture of a minor white female standing nude facing away from camera on the phone. [131] Workman sent Hall several child pornographic images in later e-mails and all of the images were found on Workman’s computer after it was seized. [132] After Hall mentioned that his girlfriend was leaving town but her children were staying behind, Workman responded, “I think I remember you saying you may has [sic] access to a 12 year-old.” [133] Workman asked Hall, “You share?,” to which Hall responded, “Videos?” [134] Workman responded, “Well, that too. I was talking about sharing the 12-year old.” [135] Workman then started a new e-mail chain with a different subject header and asked Hall if he would “like to watch me fuck her?” [136] Workman then asked to set up a time. [137] They agreed on a Monday, April 9, 2012, and Hall provided Workman with an address of an apartment complex on Idaho Street. [138]
Hall, who was already staged with other law enforcement team members, communicated to them that Workman was en route to the meeting location. [139] When Workman was nearing the dead end on Idaho Street, Hall signaled the marked units to conduct a stop. [140] Hall and Zuppardo approached Workman’s vehicle and told him they wanted to get him into an air-conditioned building, give him some water and an opportunity for a bathroom break and then they would go over the reasons why he was stopped. [141]
When Hall and Zuppardo met with Workman at the station, Workman was advised of his Miranda rights. [142] At the beginning of the interview, in an attempt to build rapport with Workman so he would be truthful, Hall let Workman knоw he knew things about him like that he played guitar and had a girlfriend named Renee. [143] Hall testified that it was his practice to let suspects know that lying to a federal officer is a crime and that he advised Workman of the penalties. [144] Hall testified that, initially, Workman was not forthcoming and admitted believing “Savage” was offering a twelve-year-old girl to have sex with him, but claimed his intent was to go to the residence to see if it was true and then call law enforcement. [145] Workman also did not initially acknowledge sending child pornography. [146] After Hall showed Workman some of the e-mails, Workman admitted to communicating with “Savage” after posting the Craig’s List advertisement titled “Somebody’s Daughter.” [147] He admitted sending six child pornographic photographs, described them and admitted that one was a picture of his niece getting out of the shower. [148] Workman told Hall that he had planned to have sex with the twelve-year-old “Savage” lived with; however, if he was impotent he would have left and done nothing else. [149] Workman also told them about a man named Ron Anderson who had an eleven- year-old who Workman was trying to meet to have sex. [150] At the conclusion of the interview, Workman said he wanted to veer away from becoming a pedophile and begged to be let go. [151]
Workman testified that he was researching human behavior on the internet. [152] Workman explained that he received chats from a sixty-year-old man in New Zealand using the moniker “Koala” who sent him icons which petitioner saved assuming they were pictures of women. When he maximized the icons, he realized they were child pornography and deleted them. [153] Workman claimed that when he was doing maintenance on his computer, he found that the photographs still existed and attempted to delete them again. [154] Workman claimed he repeatedly deleted and restored the files until he received a “file does not exist” message. [155] He found the pictures again, renamed them “Koala” and deleted them, again after which he believed they were gone. [156]
Workman testified that he posted a Craig’s List advertisement about “Somebody’s Daughter,” which he claimed was a saying from high school, as part of his behavioral research. He claimed that he intended to attract adults and specifically used the word “woman” and never intended to attract a child. [157] Workman testified that he received “quite a few responses,” including one from Ron Anderson who wanted him to “break in ” his eleven-yeаr-old daughter. [158] He also testified about a person named “Endavin” whom he allowed to come to his home, and they talked about how his father forced him and his sister to have sex. [159] Workman claimed that after his communications with Endavin and Ron Anderson, he was interested in finding the people victimizing the children. [160]
Workman testified that “Savage” responded to his “Somebody’s Daughter” post. [161] Workman admitted he sent “Savage” a picture of a girl dressed in clothes and a girl on a telephone, although he claimed he did so to see if “Savage” was familiar with Ron Anderson. [162] Workman admitted that some of the pictures he sent “Savage” were the ones he received from Koala, but claimed that he accidentally sent the images to “Savage” and had no intent to distribute child pornography. [163] He testified that he sent photographs of people he believed were adult women. [164] Workman claimed he traveled to the Idaho Street location with the intention to see if it was a “real thing,” confirm the address and call law enforcement personnel, but that he had no intent to have sex with a twelve-year-old. [165] Workman testified that, when he was stopped by law enforcement officers, he tried to tell them about Ron Anderson and Endavin. [166] He stated that during the interview, Hall told him at least twice that it was a crime to lie to a federal officer. [167] Workman denied telling Hall that he was traveling to have sex with a twelve-year-old. [168]
Workman testified that he wrote a letter explaining what happened and included the names involved and sent it to his sister, who mailed it to television stations in New Orleans, Baton Rouge and Birmingham, Alabama, and to Child Services. [169] He claimed that, in response to his letter, he was interviewed by Detective Jason Rivard, and he gave him all the information he knew about Ron Anderson. [170]
Workman testified that there were 148 images of little girls in thongs on his computer because he allowed a friend to use his computer to do research. [171] He claimed that his friend’s granddaughter was approached by a talent agent who wanted her to pose for “some things,” [172] and they researched online by accessing several websites and concluded the granddaughter should not accept the offer. [173] Workman testified that he did not save the pictures. [174]
Two lifelong friends of Workman, Danny Nichols and Fred Nance, both testified that Workman was honest and had a reputation for wanting to help others. [175]
Based on the verdict, the jury apparently found that the State ’ s evidence and
testimony were the more credible version of the facts and rejected Workman’s claim of
entrapment. Workman ’ s argument in this regard is essentially that the jury should
have believed his testimony. In short, the trial record reflects a classic credibility contest
in witness testimony, including the inferences to be drawn from and the weight to be
assigned to the evidence. These are functions the law assigns to the jury, which resolved
Workman’s assertions against him. Jackson limits this court’s review to the evidence
before the trier of fact and does not allow this court to reassess the weight and credibility
of the evidence. See Jackson,
Viewing the evidence in the light most favorable to the prosecution, I find that there was more than sufficient evidence upon which a rational trier of fact could have found that petitioner was not entrapped and that the essential elements of attempted aggravated rape and possession and distribution of child pornography were established. Because the state courts ’ rejection of Workman ’ s insufficient evidence and entrapment claims is not an unreasonable application of Supreme Court precedent to the facts of this case, I find that Workman ’ s claims are without merit and do not warrant federal habeas relief.
C. INEFFECTIVE ASSISTANCE OF COUNSEL (CLAIM NOS. 4 & 5) Workman asserts multiple claims of ineffective assistance of trial counsel. He argues that trial counsel “failed to investigate, subpoena available expert witnesses and provide vital documents during and prior to trial.” [177] Workman also claims ineffective assistance of appellate counsel for failing to assign as error the introduction of other crimes consisting of erotic images into evidence.
Workman asserted these claims in his application for post-conviction relief. The state trial court found Workman’s claims of failure to investigate and to retain an expert in computer forensics speculative and conclusory. [178] It found that Workman failed to show prejudice resulting from counsel’s failure to provide him with essential reports. The state trial court found Workman’s claim of ineffective assistance of appellate counsel speculative and conclusory and, given the overwhelming evidence of his guilt, he failed to show that the appellate court would have overturned his conviction had the issue been raised on appeal. [180]
The Louisiana Fifth Circuit found no error or abuse of discretion in the state trial
court’s ruling that Workman failed to support his claims of ineffective assistance of trial
counsel with anything other than speculation and conclusory allegations.
[181]
As to his
claim of ineffective assistance of appellate counsel, the Louisiana Fifth Circuit found that
his claim was speculative and conclusory, especially given the overwhelming evidence
of petitioner’s guilt.
[182]
The Louisiana Supreme Court denied relief, applying Strickland
v. Washington,
In Strickland, the United States Supreme Court established a two-part test for evaluating claims of ineffective assistance of counsel, requiring petitioner to prove both deficient performance and resulting prejudice. Id. at 697. The Supreme Court first held that “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 687–88. Second, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694; United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999).
In deciding ineffective assistance of counsel claims, this court need not address
both prongs of the conjunctive Strickland standard, but may dispose of such a claim
based solely on a petitioner’s failure to meet either prong of the test. Kimler, 167 F.3d
at 893. A habeas corpus petitioner “need not show that ‘counsel’s deficient conduct
more likely than not altered the outcome in the case.’ . . . But it is not enough under
Strickland, ‘that the errors had some conceivable effect on the outcome of the
proceeding.’” (citation omitted) Motley v. Collins,
On habeas review, the United States Supreme Court has clarified that, under
Strickland, “[t]he question is whether an attorney’s representation amounted to
incompetence under prevailing professional norms, not whether it deviated from best
practices or most common custom.” Harrington,
The standards created by Strickland and § 2254(d) are both “highly deferential,” and when the two apply in tandem, review is doubly so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under
§ 2254(d). When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.
Harrington,
Thus, scrutiny of counsel’s performance under § 2254(d) is “doubly deferential.”
Cullen,
In assessing counsel’s performance, a federal habeas court must make every effort to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time
of trial. Strickland,
The issue of ineffective assistance of counsel is a mixed question of law and fact.
Clark v. Thaler,
(1) Failure to Investigate and Subpoena Expert Witness to Testify Workman claims that his trial counsel failed to hire an investigator to investigate the case and failed to call an expert witness, D. Wesley Attaway, who conducted a forensic analysis of Workman’s computer hard drive, to testify at trial.
“‘A defendant who alleges a failure to investigate on the part of his counsel must
allege with specificity what the investigation would have revealed and how it would have
altered the outcome оf the trial.’” Moawad v. Anderson,
have revealed. Moawad,
As an initial matter, Workman has failed to establish that counsel’s investigation
without an investigator was actually inadequate in any respect. In fact, he presented no
evidence whatsoever as to what investigative steps counsel actually took or failed to take.
Without such evidence, he cannot show that counsel performed deficiently. Netter v.
Cain,
As for Workman’s claim relating to the failure to present the testimony of an
expert witness, it is well settled that “‘[c]omplaints of uncalled witnesses are not favored,
because the presentation of testimonial evidence is a matter of trial strategy and because
allegations of what a witness would have testified are largely speculative.’” Graves v.
Cockrell,
Workman claims that Attaway could have testified that petitioner never shared child pornography peer to peer and could have also testified about the origins of the child erotica and“missing emails.” He further claims that Attaway would have explained the photographs were not from websites or search engines and that petitioner took steps to destroy them. He claims Attaway would have explained how the photos could remain on the hard drive without Workman’s knowledge and would have presented e-mails from Anderson and other e-mails with information of possible child exploitation, including e- mails in which “Savage” stated he was abusing his own daughter.
The record demonstrates that defense counsel obtained an order allowing an
unnamed defense expert to access petitioner’s computer hard drive and that discovery
was satisfied as of January 9, 2014. There is no evidence in the record, such as a report
or an affidavit from Attaway or any other defense expert, explaining any expert findings.
Workman offers only self-serving, speculative and conclusory allegations that the
proposed witness would have in fact testified and would have done so in a manner
consistent with Workman’s version of the facts. Therefore, petitioner has failed to meet
his burden of proof with respect to this claim. See, e.g., United States v. Cockrell, 720
F.2d 1423, 1427 (5th Cir. 1983) (courts view “with great caution claims of ineffective
assistance of counsel when the only evidence of a missing witness’s testimony is from
the defendant”); Buniff v. Cain, 2011 WL 2669277, at *3 (E.D. La. July 7, 2011);
Anthony v. Cain,
Workman claims his trial counsel was ineffective in failing to provide “vitаl documents during and prior to trial.” [185] He claims that he “was not provided with a copy of the search warrant, the subpoena to Cox Communications . . . the affidavits affirming the grounds to issue them” or his advice of rights forms. [186] Workman argues that he needed these documents to file a motion to suppress the evidence, which he claims was illegally obtained, to show that he was questioned before being advised of his Miranda rights and the charges against him and to prepare his defense.
The record reflects that Workman concedes that his trial counsel met with him on at least five occasions outside of the times they were present together at court proceedings. [187] He also concedes that trial counsel provided him with discovery, except “the search warrant, affidavit for arrest, F.B.I. evidence sheets, and advice of rights form.” [188] However, Workman was present at the suppression hearing when the advice of rights forms were shown to defense counsel before being admitted into evidence. [189] At that hearing, defense counsel elicited testimony from Agent Hall that the Kenner Police Department placed Workman under arrest, but he was not advised of his rights until he arrived at the police department. [190] Hall explained that Workman asked a question upon his arrest and that Hall told him that everything would be explained once they got him to an air-conditioned building and gave him water. [191] According to Hall, that was the only communication before Workman was advised of his Miranda rights. [192] The elapsed time between the traffic stop and when Workman was advised of his Miranda rights was less than one hour. [193]
The record further reflects that open file discovery was permitted and was
“satisfied.”
[194]
The record demonstrates that defense counsel, who represented Workman
for nearly two years, was fully familiar with the evidence and well-prepared for trial. As
discussed above, Workman’s counsel filed a motion to suppress Workman’s statement.
While he did not file a motion to suppress other evidence, Workman has not
demonstrated any basis to do so or a reasonable probability that such a motion would
have been successful. See Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir. 2002)
(counsel is not required to make futile motions or frivolous objections); Smith v. Puckett,
Furthеrmore, Workman has not shown that he was prejudiced by his trial counsel’s
alleged failure to provide him with documents. The state court record reflects that
Workman’s counsel vigorously challenged the State’s evidence at trial and cross-
examined the State’s witnesses in great detail. Defense counsel presented the defenses
of both entrapment and lack of intent. The fact that the jury did not accept either defense
does not render counsel’s performance constitutionally deficient. See Martinez v.
Dretke, 99 F. App’x 538, 543 (5th Cir.2004) (“[A]n unsuccessful strategy does not
necessarily indicate constitutionally deficient counsel.”). “[I]t is all too easy for a court,
examining counsel’s defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable.” Strickland,
Workman has not established that the state courts’ denial of relief was contrary to or an unreasonable application of Strickland or its progeny. He is not entitled to relief on this claim.
(3) Ineffective Assistance of Appellate Counsel
Workman claims that his appellate counsel was ineffective in failing to argue on appeal that the trial court permitted inadmissable “other crimes” evidence consisting of child erotica images to be admitted into evidence.
Agent Hall testified that he submitted the images found on Workman’s computer to the National Center for Missing and Exploited Children and that some of the children in the photographs had been identified. [195] When the prosecution attempted to show Hall State’s Exhibit 33, the United States Department of Justice subpoena to Cox Communications, [196] defense counsel objected and argued that he had not been provided a copy in discovery and did not know the relevance of the evidence. [197] The state trial court found that the document was not necessary and did not admit it into evidence. [198] In addressing State’s Exhibit 18, the FTK-CD report of the examination of Workman’s computer by Lawrence Robinson, Agent Hall testified that he tagged 184 images on Workman’s computer that would not constitute child pornography but rather “erotica” due to the poses. [199] Defense counsel did not object to that testimony or the introduction of the exhibit. [200] When the prosecutor questioned Workman about the images, Workman explained that he had helped a friend research a talent agency and that he told Agent Hall about his actions when he was arrested because he had “nоthing to hide.” [201]
Criminal defendants are entitled to effective assistance of counsel in their first
appeal of right. Evitts v. Lucey,
judging performance of counsel also applies to claims of ineffective appellate counsel.
Smith v. Robbins,
Effective appellate counsel are not required to assert every nonfrivolous available
ground for appeal. Green,
Initially, since Exhibit 33 was not admitted into evidence, there was no basis for appellate counsel to argue its wrongful admission on appeal. Such an argument would have wholly lacked merit. Failing to raise a frivolous claim “does not cause counsel’s performance to fall below an objective level of reasonableness.” Woods v. Johnson, 75 F.3d 1017, 1037 (5th Cir. 1996). Thus, counsel’s failure to assert it on direct appeal cannot be deemed either deficient performance or prejudicial since Workman has not demonstrated a reasonable probability that he would have prevailed on this issue.
As to Workman’s claim that the evidence regarding the child erotica images found
on his computer was not admissible, defense counsel did not object to the testimony or
the admission of the related physical evidence. A contemporaneous objection would
have been necessary to preserve error for review on direct appeal. La. Code Crim. P. art
841(A) (“An irregularity or error cannot be availed of after verdict unless it was objected
to at the time of occurrence.”). In the instant case, there was no contemporaneous
objection. Without the claim being properly preserved for review on direct appeal,
appellate counsel was not in a position to assert the claim on appeal; if it had been raised,
the court of appeal would have rejected it as procedurally defaulted. Appellate counsel
cannot be considered ineffective “in declining to raise an unreviewable issue.” Givens
v. Cockrell,
The state courts’ denial of relief on this claim was not contrary to or an unreasonable application of Supreme Court precedent. Workman is not entitled to relief on this claim.
RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that Workman’s petition for issuance of a writ of habeas corpus under 28 U.S.C. § 2254 be DENIED and DISMISSED WITH PREJUDICE .
A party’s failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge’s report and recommendation within fourteen
(14) days after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and
legal conclusions accepted by the district court, provided that the party has been served
with notice that such consequences will result from a failure to object. Douglass v.
United Servs. Auto. Ass’n,
6th New Orleans, Louisiana, this __________ day of September, 2019.
JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE
Notes
[1] Under 28 U.S.C. § 2254(e)(2), whether to hold an evidentiary hearing is a statutorily mandated determination. Section 2254(e)(2) authorizes the district court to hold an evidentiary hearing only when the petitioner has shown either that the claim relies on a new, retroactive rule of constitutional law that was previously unavailable, 28 U.S.C. § 2254(e)(2)(A)(i), or the claim relies on a factual basis that could not have been previously discovered by exercise of due diligence, 28 U.S.C. § 2254(e)(2)(A)(ii); and the facts underlying the claim show by clear and convincing evidence that, but for the constitutional error, no reasonable jury would have convicted the petitioner. 28 U.S.C. § 2254(e)(2)(B).
[2] Record Doc. No. 3.
[3] State Record Vol. 1 of 12, Bill of Information, 6/5/12.
[4] State Record Vol. 1 of 12, Amended Bill of Information, 7/19/12.
[5] State Record Vol. 1 of 12, Second Amended Bill of Information, 2/25/14.
[6] State Record Vol. 1 of 12, Omnibus Motions and Order for Pre-Trial Motions, 6/12/12.
[7] State Record Vol. 1 of 12, Pro Se Omnibus Motions and Order for Pre-trial Motions, 3/26/13.
[8] State Record Vol. 1 of 12, Trial Minutes, 2/25/14; State Record Vol. 5 of 12, Hearing Transcript, 2/25/14.
[9] State Record Vol. 1 of 12, Trial Minutes, 2/25/14; Trial Minutes, 2/26/14; Trial Minutes, 2/27/14; Verdict, 2/27/14; State Record Vol. 5 of 12, Trial Transcript, 2/26/14; State Record Vol. 6 of 12, Trial Transcript (con’t), 2/26/14; Trial Transcript, 2/27/14; State Record Vol. 3 of 12, Opening Statements Transcript, 2/26/14.
[10] State Record Vol. 1 of 12, Motion for New Trial, 3/6/14.
[11] State Record Vol. 1 of 12, Sentencing Minutes, 3/10/14; Commitment Order, 3/10/14; State Record Vol. 6 of 12, Sentencing Transcript, 3/10/14.
[12] State Record Vol. 6 of 12, Appellant Brief, 2014-KA-0559, 10/27/14.
[13] State Record Vol. 6 of 12, Pro Se Appellant Brief, 2014-KA-0559, 2/23/15 (dated 2/17/15).
[14] State Record Vol. 6 of 12, Pro Se Supplemental Appellate Brief, 14-KA-559, 3/5/15 (dated 2/28/15).
[15] State v. Workman,
[16] State Record Vol. 1 of 12, Minutes, 4/15/15; Amended Uniform Commitment Order, 4/15/15.
[17] State v. Workman,
[18] State Record Vol. 1 of 12, Application for Post Conviction Relief, 11/15/16; St. Rec. Vol. 2 of 3, Application for Post Conviction Relief (con’t), 11/15/16; St. Rec. Vol. 3 of 12, Application for Post Conviction Relief (con’t), 11/15/16.
[19] State Record Vol. 3 of 12, Trial Court Order, 11/29/16.
[20] State Record Vol. 3 of 12, Application for Post Conviction Relief, 12/15/16.
[21] State Record Vol. 3 of 12, Trial Court Order, 2/1/17.
[22] State Record Vol. 8 of 12, Fifth Circuit Order, 17-KH-134, 4/4/17; 5th Cir. Writ Application, 17-KH-134, 3/3/17.
[23] State v. Workman,
[24] State ex rel. Workman v. State
[25] State Record Vol. 3 of 12, Motion for Concurrent and Coterminous Judgments, 6/1/17 (dated 5/26/17); Trial Court Order, 6/12/17.
[26] State Record Vol. 1 of 12, Motion to Correct an Indeterminate Sentence Pursuant to La.C.Cr.P. art. 879, 12/10/18.
[27] Record Doc. No. 3.
[28] Record Doc. No. 12.
[29] Record Doc. Nos. 9, 14, 15 and 16.
[30] Record Doc. No. 17.
[31] Record Doc. Nos. 9 and 14.
[32] Record Doc. No. 9-1 at pp. 2–8, 10–35.
[33] Id. at p. 8.
[34] Id. at pp. 18, 20.
[35] Id. at p. 34.
[36] State Record Vol. 1 of 12, State Record Vol. 1 of 12, Application for Post Conviction Relief, Exhibit 6, 11/15/16.
[37] The opinion of the Louisiana Fifth Circuit Court of Appeal, cited above, refers to Detective Jessica Cantrell Zuppardo as Detective Zuppardo. The state trial court transcript consistently makes reference to Detective Cantrell. Detective Zuppardo and Detective Cantrell are the same person. For purposes of this opinion, Detective Jessica Cantrell Zuppardo will be referred to as Detective Zuppardo.
[38] State Record Vol. 5 of 12 at pp. 12–13, Trial Transcript, 2/26/14.
[39] Id. at p. 14.
[40] State Record Vol. 5 of 12, Preliminary Hearing Transcript at p. 5, 5/24/12; Trial Transcript at p. 134, 2/24/14.
[41] Record Doc. Nos. 15-16.
[42] Record Doc. No. 3.
[43] Record Doc. No. 12.
[44] Record Doc. Nos. 3-3 at pp. 41–60; 3-4 at pp. 8, 39; 3-5at pp. 3–4, 40–41, 71–72, 73–75.
[45] Record Doc. No. 12.
[46] The state court record does not include an index and no index was required by the court. While a copy of the trial court docket master is included, Workman previously paid for and received a copy of it. State Record Vol. 1 of 12, Letter, 7/16/14 (dated 6/17/14); Response to Request for Information and/or Documents, 7/17/14. The record demonstrates that Workman was permitted to review the entire trial court record to search for errors before he filed his two pro se briefs on direct appeal. State Record Vol. 6 of 12, 5th Cir. Protective Order, 14-KA-559, 12/18/144; 5th Cir. Order, 14-KA-559, 1/28/15. Workman’s state court application for post-conviction relief, filed with the counsel’s assistance, included 76 pages of discovery, the trial transcripts and a transcript from a hearing held on May 23, 2013. State Record Vol. 1 of 12, Application for Post Conviction Relief, 11/15/16; State Record Vol. 2 of 3, Application for Post Conviction Relief (con’t), 11/15/16; State Record Vol. 3 of 12, Application for Post Conviction Relief (con’t), 11/15/16. Workman was represented by counsel at all times until the filing of his federal habeas petition and it is clear that his counsel possessed copies of the state court record, the District Attorney’s file, and the non-protected portions of the Federal Bureau of Investigation file.
[47] The AEDPA, which was signed into law on that date, does not specify an effective date for its
non-capital habeas corpus amendments. Absent legislative intent to the contrary, statutes become
effective at the moment they are signed into law. United States v. Sherrod,
[48] The Fifth Circuit has recognized that a “mailbox rule” applies to pleadings, including habeas corpus petitions filed after the effective date of the AEDPA, submitted to federal courts by prisoners acting pro se. Under this rule, the date when prison officials receive the pleading from the inmate for
[49] State Record Vol. 6 of 12, Trial Transcript, p. 80, 2/27/12.
[50] Id. at pp. 80–81.
[51] Id. at p. 81.
[52] Id. at p. 82.
[53] Id.
[54] State Record Vol. 1 of 12, Motion for New Trial, 3/6/14.
[55] State Record Vol. 6 of 9, Sentencing Transcript at pp. 5–6, 3/10/14.
[56] Workman,
[57] Id.; State Record Vol. 6 of 12, 5th Cir. Opinion, 14-KA-559 at p. 24, 4/15/15.
[58] Workman,
[59] State Record Vol. 1 of 12, Omnibus Motions and Order for Pre-Trial Motions, 6/12/12.
[60] State Record Vol. 1 of 12, Pro Se Omnibus Motions and Order for Pre-trial Motions, 3/26/13.
[61] State Record Vol. 1 of 12, Trial Minutes, 2/25/14; State Rec Vol. 5 of 12, Hearing Transcript, 2/25/14.
[62] Workman,
[63] State Record Vol. 1 of 12, Trial Minutes, 2/25/14; State Record Vol. 5 of 12, Trial Transcript, 2/25/14.
[64] State Record Vol. 5 of 12, Trial Transcript at pp. 7-9, 15, 2/25/14.
[65] Id. at pp. 8-9.
[66] Id. at p. 10.
[67] Id.
[68] Id. at pp. 10-12, 20.
[69] Id. at p. 10.
[70] State Record Vol. 5 of 12, Trial Transcript at pp. 11, 21, 2/25/14.
[71] Id. at p. 11.
[72] Id. at pp. 18, 24.
[73] Id. at p. 17.
[74] Id. at pp. 18-19.
[75] Id. at p. 19.
[76] State Record Vol. 5 of 12, Trial Transcript at p. 28, 2/25/14.
[77] Id.
[78] Workman,170 So. 3d at 293–94; State Record Vol. 6 of 12, 5th Cir. Opinion, 14-KA-559 at pp. 22–23, 4/15/15.
[79] Record Doc. No. 3-1 at pp. 2-3.
[80] Id. at p. 3.
[81] Workman,
[82] Id. at 291; State Record Vol. 6 of 12, 5th Cir. Opinion, No. 14-KA-559 at pp. 18-19, 4/15/15.
[83] “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence
tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. Rev.
Stat. § 15:438. However, on federal habeas corpus review, the court does not apply this state law
“reasonable hypothesis” standard, but instead must apply Jackson. See Gilley v. Collins,
[84] State Record Vol. 5 of 12, Trial Transcript at pp. 12–14, 2/26/14.
[85] Id. at p. 14.
[86] Id. at pp. 14–16.
[87] Id. at p. 16.
[88] Id. at p. 18.
[89] Id. at p. 19.
[90] State Record Vol. 5 of 12, Trial Transcript at pp. 20–24, 2/26/14.
[91] Id. at pp. 28–30.
[92] Id. at p. 31.
[93] Id. at pp. 32-33.
[94] Id. at pp. 33-34.
[95] State Record Vol. 5 of 12, Trial Transcript at pp. 34–35, 2/26/14.
[96] Id. at pp. 35-36.
[97] Id. at p. 37.
[98] Id. at p. 37.
[99] Id. at pp. 37, 54.
[100] State Record Vol. 5 of 12, Trial Transcript at pp. 37, 49, 2/26/14.
[101] Id. at p. 57.
[102] Id. at. pp. 59–63.
[103] Id. at pp. 65–67.
[104] Id. at pp. 73, 79–84.
[105] Id. at p. 121.
[106] State Record Vol. 5 of 12, Trial Transcript at pp. 84, 101, 2/26/14.
[107] Id. at p. 122.
[108] Id. at p. 122.
[109] Id. at p. 134.
[110] Id. at pp. 135-136.
[111] Id. at p. 117.
[112] State Record Vol. 5 of 12, Trial Transcript at pp. 138, 142, 2/26/14.
[113] Id. at pp. 139–141, 143.
[114] Id. at p. 143.
[115] Id. at p. 144.
[116] Id., at p. 144.
[117] State Record Vol. 5 of 12, Trial Transcript at p. 146, 2/26/14.
[118] Id., at p. 147.
[119] Id., at p. 148.
[120] Id., at p. 148.
[121] Id., at p. 150.
[122] State Record Vol. 5 of 12, Trial Transcript at p. 151, 2/26/14.
[123] Id. at p. 152.
[124] Id. at p. 153.
[125] Id. at pp. 155–56.
[126] State Record Vol. 5 of 12, Trial Transcript at p. 156, 2/26/14.
[127] Id. at pp. 158–60.
[128] Id. at p. 160.
[129] Id. at p. 162.
[130] Id. at pp. 156, 163–64.
[131] State Record Vol. 5 of 12, Trial Transcript at pp. 164–66, 2/26/14.
[132] Id. at pp. 166, 168, 172-174, 180-181 ,206.
[133] Id. at pp. 170, 172, 175.
[134] Id. at p. 176.
[135] Id.
[136] State Record Vol. 5 of 12, Trial Transcript at p. 177, 2/26/14.
[137] Id. at p. 178.
[138] Id. at pp. 184-188.
[139] Id. at pp. 188-189.
[140] Id. at p. 191.
[141] State Record Vol. 6 of 12, Trial Transcript (con’t) at p. 192, 2/26/14.
[142] Id. at p. 195.
[143] Id. at p. 194.
[144] Id. at pp. 195, 197, 230.
[145] Id. at p. 198.
[146] State Record Vol. 6 of 12, Trial Transcript (con’t) at p. 199, 2/26/14.
[147] Id. at p. 203.
[148] Id. at pp. 205–06.
[149] Id. at pp. 201–07.
[150] Id. at pp. 208–09.
[151] Id. at p. 209.
[152] State Record Vol. 6 of 12, Trial Transcript at p. 27, 2/27/12.
[153] Id. at pp. 28–30.
[154] Id. at p. 29.
[155] Id. at p. 30.
[156] Id. at pp. 30–31.
[157] Id. at pp. 32-33, 49–51.
[158] State Record Vol. 6 of 12, Trial Transcript at pp. 33, 57–58, 2/27/12.
[159] Id. at pp. 35–38.
[160] Id. at p. 42.
[161] Id. at 38–39.
[162] Id. at pp. 40, 48, 62, 68, 70.
[163] Id. at pp. 41, 45, 47, 75-76, 86, 96, 99.
[164] State Record Vol. 6 of 12, Trial Transcript at pp. 41, 47, 2/27/12.
[165] Id. at pp. 41–42, 99.
[166] Id. at pp. 42–43.
[167] Id. at pp. 43–44.
[168] Id. at pp. 44–45.
[169] State Record Vol. 6 of 12, Trial Transcript at pp. 45, 47, 2/27/12.
[170] Id.
[171] Id. at pp. 63–65.
[172] Id. at p. 63.
[173] Id. at pp. 63–64.
[174] Id. at p. 64.
[175] Id. at 101, 106.
[176] The trial court instructed the jury regarding the defense of entrapment. State Record Vol. 1 of 12, Criminal Jury Charges at pp. 6–7, 2/27/14.
[177] Record Doc. No. 3-1 at p. 8.
[178] State Record Vol. 3 of 12, Trial Court Order at pp. 1-2, 2/1/17.
[179] Id. at p. 2.
[180] Id.
[181] State Record Vol. 8 of 12, 5th Cir. Order, 17-KH-134 at p. 1, 4/4/17.
[182] Id.
[183] State v. Workman,
[184] State Record Vol. 1 of 12, Order, 7/22/13; Minutes, 1/9/14.
[185] Record Doc. No. 3-1 at p. 8.
[186] Id. at p. 17.
[187] State Record Vol. 3 of 12, Application for Post Conviction Relief (con’t), Exh. 9 (Affidavit of Gary Workman, 9/12/16), 11/15/16.
[188] Id.
[189] State Record Vol. 5 of 12, Hearing Transcript at pp. 1, 9, 2/25/14.
[190] Id. at pp. 13–15.
[191] Id. at pp. 14–15.
[192] Id.
[193] State Record Vol. 5 of 12, Trial Transcript at p. 32, 2/26/14 (Zuppardo).
[194] State Record Vol. 1 of 12, Minutes, 1/9/14; Minutes, 2/24/14; State Record Vol. 3 of 12, Opening Statements Transcript at p. 10, 2/26/14; St. Rec. Vol. 6 of 12, Trial Transcript (con’t) at p. 213, 2/26/14.
[195] State Record Vol. 6 of 12, Trial Transcript (con’t) at pp. 211-212, 214, 2/26/14.
[196] State Record Vol. 1 of 12, Trial Minutes, 2/27/14; Exhibit Index Case #12-2204, undated.
[197] State Record Vol. 6 of 12, Trial Transcript (con’t) at pp. 212-213, 2/26/14.
[198] State Record Vol. 6 of 12, Trial Transcript (con’t) at p. 214, 2/26/14.
[199] Id. at p. 215.
[200] Id.; State Record Vol. 6 of 12, Trial Transcript at pp.15-17, 2/27/14
[201] State Record Vol. 6 of 12, Trial Transcript at pp. 63-65, 2/27/14
[202] Douglass referenced the previously applicable ten-day period for the filing of objections. Effective December 1, 2009, 28 U.S.C. § 636(b)(1) was amended to extend the period to fourteen days.