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Floyd v. Vannoy

United States Court of Appeals, Fifth Circuit

June 25, 2018

JOHN DAVID FLOYD, Petitioner - Appellee
v.
DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY, Respondent - Appellant

          Appeal from the United States District Court for the Eastern District of Louisiana

          Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.

         ON PETITION FOR REHEARING EN BANC

          PER CURIAM:

         Appellant's Petition for Rehearing En Banc is DENIED. This opinion is substituted in place of the prior opinion, Floyd v. Vannoy, 887 F.3d 214 (5th Cir. 2018).

         For two murders in New Orleans, Louisiana, in 1980, within days of, and in close proximity to, each other and involving extremely similar facts, John David Floyd was convicted in a state-court joint bench trial of the first, but acquitted of the second, murder, with state post-conviction relief's being denied for the first time in 2011, but federal habeas relief's being granted in 2017 because, after concluding the habeas application was not time-barred, the district court concluded: material evidence, favorable to Floyd, had been withheld prior to trial; and the state courts' contrary decisions had unreasonably applied clearly-established federal law, as proscribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). For the State's challenge to that relief, at issue is whether: Floyd established "actual innocence" to overcome the statute of limitations for his application; and, in denying Floyd's claim that the State withheld favorable, material evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963), the Louisiana state courts unreasonably applied clearly-established federal law. AFFIRMED.

         I.

         On 26 November 1980, William Hines, a white male, was found nude, stabbed to death inside the bedroom of his apartment on Governor Nicholls Street, in the French Quarter. The apartment had no signs of forced entry or evidence of burglary. One glass of alcohol was in Hines' bedroom; another, in his kitchen; and his wounds indicated he was stabbed while lying down.

         Detective John Dillmann, the lead detective for the murder investigation, found the scene demonstrated a strong likelihood Hines was murdered by a welcome visitor with whom he shared a drink and had sexual relations. Accordingly, police dusted for fingerprints whiskey bottles, the glass of alcohol in Hines' kitchen, and the glass of alcohol on his nightstand.

         Along that line, a crime-scene photograph of Hines' kitchen shows, among other items, a wine bottle and two whiskey bottles on the kitchen table. In addition, the crime-scene technician's report states:

TECH. T. SEUZENEAN DUSTED
SEVERAL WHISKEY BOTTLES - Neg. RESULTS
DUSTED / - WHISKEY BOTTLE AND LIFTED - 2 PARTIAL LATENT PRINTS
DUSTED / - WHISKEY GLASS FROM
NIGHT TABLE IN BEDROOM - Neg. RESULTS
DUSTED / - WHISKEY GLASS FROM KITCHEN TABLE - Neg. RESULTS

         Accordingly, it appears the "DUSTED. . .WHISKEY GLASS FROM KITCHEN TABLE", but not shown in the photograph, was on the table where the dusted whiskey bottles were located. (To repeat, and as emphasized by the dissent at 5, no whiskey glass is visible on the table in the photograph. Myriad items shown on the table prevent conclusively determining whether a whiskey glass was there. But, as shown above, the technician's report states: "DUSTED / - WHISKEY GLASS FROM KITCHEN TABLE".)

         In any event, the relatively close proximity of the whiskey glass and the dusted whiskey bottle from which two prints were lifted (the whiskey bottle) is critical in our analysis. This is especially true for Detective Dillmann's erroneous related testimony at trial, in which he: stated "there were two highball glasses filled with a liquid on each side of the bed"; and made no reference to the whiskey glass in the kitchen.

         Along that line, the dissent at 5 states "the majority has decided, because it fits its narrative, to credit the tech over Dillmann". The dissent's conclusion that the detective's testimony and the technician's report have comparable credibility is contrary to the State's narrative, not ours. The State, in its opening brief at 16, acknowledges that the detective's testimony about the glasses, "rendered for the first time a full year and a half after the crime, [and] directly contradicted by Crime Scene Tech Tim Suzeneau's report", is less credible than the technician's report. Likewise, at oral argument in our court, the State maintained the technician's report, "generated on the day of the offense", was more accurate than the detective's testimony, "recollected at trial . . . a little over a year after the incident".

         In the alternative, the dissent at 5 asserts a possibility the detective's testimony and contradictory technician's report were both accurate because there may have been one glass in the kitchen and two in the bedroom. But, nothing in the record supports this theory of three whiskey glasses being discovered at the Hines scene.

         In sum, in its opening brief and at oral argument, the State maintained the crime scene technician's report included a detailed list of all collected evidence. Again, the report included only two whiskey glasses: one from the kitchen and one from the bedroom.

         Police also collected hair, appearing to be a black person's, from Hines' bedsheets. But, because Hines had been dead for at least 24 hours prior to his body's being discovered, any evidence of seminal fluid or spermatozoa on, or in, his body was undetectable.

         Following multiple interviews, Detective Dillmann learned Hines was gay and frequented gay establishments in the French Quarter. And, the detective's report, and subsequent testimony, provided that John Clegg, a close friend of Hines and the last known person to see him alive, had advised the detective that Hines "frequently had sexual relations with both black and white males".

         At 4:45 a.m. on 28 November, only two days after the discovery of Hines' body, Rodney Robinson, a black male, was found dead at the Fairmont Roosevelt Hotel in downtown New Orleans, just one mile from Hines' apartment. In the hours preceding his death, Robinson had visited several bars with his friend David Hennessy. After Robinson, according to Hennessy, drove him to his home at around 3:15 a.m., Robinson said he was returning to his hotel for the night. Just 90 minutes later, he was found nude, stabbed to death, in a hallway in his hotel.

         In their investigation, officers found the locks on Robinson's hotel-room door functional; glasses containing alcohol remained on end tables next to his bed; and articles of clothing were scattered about the room. Consequently, they believed Robinson was murdered after sharing a drink and having sexual relations with his killer. Detectives' interview of Hennessey revealed Robinson was gay.

         Police discovered physical evidence of: blood stains along the hallway wall; a blood-stained blue-knit cap in the hallway relatively near Robinson's body; seminal fluid on a tissue discovered near his bed; and spermatozoa and seminal fluid in his body. Additionally, police discovered a black person's hair-determined later not to be Robinson's-on the blue-knit cap. Further, hotel guests staying nearest Robinson's room reported hearing screams and rapid footsteps in the hallway; and a hotel security guard reported seeing a black male running from the back door of the hotel shortly before the police arrived. Detective Michael Rice, lead detective for the murder investigation, believed the guard "witnessed the perpetrator . . . making good his escape".

         Detective Dillmann considered the similarities in the Hines and Robinson crimes-comparable defensive wounds, lack of forced entry, each victim's being gay, glasses of alcohol near each victim's bed (again, for Hines' murder, only one glass was near his bed; the other was in the kitchen, as was the whiskey bottle), and evidence of sexual relations between the perpetrator and victim-to conclude the same perpetrator was responsible for both murders. Initially, investigators unsuccessfully pursued black, male suspects. John Floyd, a white male, then 32, lived as a "drifter" in New Orleans at the time of the murders. He was a heavy drinker and drug-user, and frequented numerous bars in the French Quarter. On 29 November, one day after the discovery of Robinson's body, Detective Dillmann received a tip from Harold Griffin that Floyd had recently made incriminating statements linking him to Robinson's murder.

         Griffin reported that, after drinking with Floyd at the Louisiana Purchase Bar from 10:00 p.m. on 28 November (approximately 17 hours after Robinson's body was found) until 5:00 a.m. the next day, 29 November, Floyd asked Griffin to accompany him to the detoxification center at Charity Hospital. Griffin testified that, during their walk to the hospital, Floyd told him "he heard that perhaps going to the Detox Center would be the next best thing to keep from being held accountable for doing something wrong"; Floyd then asked Griffin if he had "heard of the stabbing at the Fairmont"; and he replied "No".

         Later that day, Griffin learned of Robinson's murder as covered in the 29 November morning edition of the Times Picayune, and reported his conversation with Floyd to the New Orleans Police Department (NOPD), finding it peculiar Floyd knew of the murder prior to the paper's publication. But, the paper had published a story on Robinson's murder in its 28 November evening edition, prior to Floyd's statements to Griffin on the 29th.

         Following up on Griffin's tip, Detective Dillmann questioned French Quarter bar owner Steven Edwards, who advised that Floyd made incriminating statements linking him to Hines' murder. According to Edwards, in late November he encountered Floyd "drinking heavily" and refused him service at the Mississippi River Bottom bar. Edwards testified: he told Floyd, "you know you are barred from the f…ing bar"; Floyd then threatened, "[d]on't come f…ing with me. I already wasted one person"; Edwards asked, "Who? Bill Hines?"; and Floyd replied, "Yeah, on Governor Nichol[l]s".

         Based on these statements to Griffin and Edwards, Floyd was made a suspect in the two murders. After receiving a positive identification from both Griffin and Edwards, Detective Dillmann and a NOPD officer found Floyd drinking at the Louisiana Purchase Bar. They purchased Floyd at least one drink before arresting and transporting him to NOPD's homicide office.

         There, Detective Dillmann began interrogating Floyd. He testified Floyd initially denied any involvement in the two murders, but, within 30 minutes, became very emotional about his drinking and drug-use, and confessed verbally to killing Hines and Robinson.

         Following Floyd's admissions, the detective called Detective Rice, and they procured Floyd's signed confessions to both murders. Detective Rice witnessed Detective Dillmann take the Hines confession, and Detective Dillmann did the same for Detective Rice's taking the Robinson confession. The confessions were taken on the evening of 19 January 1981, and had markedly similar descriptions such as: drinking and having sexual relations with the victims before fatally stabbing them in response to each man's wanting to "f… [him]".

         Indicted on two counts of second-degree murder, Floyd waived his right to a jury trial, and proceeded to a joint bench trial in Orleans Parish Criminal District Court, maintaining a defense of third-party guilt. For the Hines murder the State presented: Floyd's confession to murdering Hines; Detective Dillmann's testimony that the confession was credible; and Edwards' testimony regarding Floyd's threats to him. For the Robinson murder, the State presented: Floyd's confession to murdering Robinson; Detective Rice's testimony related to Floyd's Robinson confession; Griffin's testimony regarding Floyd's statements to him; and testimony by Byron Reed, Floyd's acquaintance and former sexual partner, that Floyd made an incriminating statement about the Robinson murder to him.

         For the Hines charge, the defense presented NOPD criminalist Daniel Waguespack's testimony that Floyd was excluded from the blood and hair discovered at Hines' residence. (The hair from the Hines scene has since been lost, preventing DNA testing. It appears this was part of the evidence destroyed during Hurricane Katrina in 2005, after Detective Dillmann took the police files to use in writing a book about, inter alia, the investigation, as discussed infra.) For the Robinson charge, the defense presented: NOPD criminalist Alan Sison's testimony, discussed infra, that the blood and seminal fluid from the Robinson scene were not attributable to Floyd; testimony from Patricia Daniels, the Parish of Orleans coroner's office's medical technologist, that Floyd was excluded from all seminal fluid discovered in Robinson's body; and the Fairmont's security guard's testimony that she repeatedly attempted to report seeing a black male running from the hotel on the night of the murder. For both charges, the defense presented: Floyd's testimony his confessions were untrue and a result of Detective Dillmann's "beating" him during the interrogation; and testimony by Dr. Marvin Miller about Floyd's susceptibility to coercion.

         In short, the State did not present any physical evidence linking Floyd to Hines' murder. Rather, Detective Dillmann testified the evidence of the glasses of whiskey discovered in Hines' apartment (as discussed supra, the detective erroneously testified the glasses were discovered "on each side of the bed"; instead, the crime-scene technician's report demonstrates one glass was found in the kitchen, where the whiskey bottle was located, and one glass was found in the bedroom), the placement of clothing in his residence, and the position of Hines' body corroborated "perfectly" the descriptions in Floyd's confession, and supported its credibility. For example, the detective testified: Floyd's statement in his confession that "[w]e were both drinking" was consistent with the fact that investigators "found two drinking glasses in the bedroom of the apartment"; and Floyd's descriptions in his confession of Hines' falling "on the floor next to the bed" after he stabbed him, corroborated the "position of the body where it fell off the bed".

         And, as noted, Edwards testified about Floyd's incriminatory threats to him. The trial judge found Floyd's incriminating statements, including in his confession, sufficient to support his guilt for Hines' murder, and convicted him of second-degree murder.

         Analogous to the Hines charge, the State did not present any physical evidence linking Floyd to Robinson's murder. To support his guilt, the State presented evidence of Floyd's confession, and of the incriminating statements linking him to that murder.

         The defense presented physical evidence to contradict Floyd's confession to murdering Robinson after sexual relations. NOPD Criminalist Alan Sison testified the seminal fluid discovered in Robinson's hotel room was attributable to an individual with type-A blood; medical technologist Daniels, the seminal fluid found in Robinson's body was also attributable to an individual with type-A blood. Floyd, however, has type-B blood; Robinson had type-O. Further, Sison testified the black person's hair discovered in the blue-knit cap, found in the hallway relatively near Robinson's body, was "dissimilar" to Floyd's long blonde hair.

         Obviously, there was more exculpatory evidence to present for Robinson's murder than for Hines', in part because Hines' body was not discovered until at least 24 hours after his death. Although Floyd contemporaneously confessed to murdering Hines and Robinson, and investigators presumed the same perpetrator committed both crimes, the trial judge found Floyd's confession and alleged incriminating statements insufficient to support his guilt for the Robinson murder.

         After Floyd was found guilty of Hines' murder, but simultaneously acquitted of Robinson's, he was sentenced to life imprisonment without parole. The Supreme Court of Louisiana affirmed his conviction and sentence. State v. Floyd, 435 So.2d 992 (La. 1983).

         From 1983 until 2006, Floyd wrote numerous letters to individuals and organizations, asserting his innocence. In 2006, 23 years after his conviction was affirmed by the Supreme Court of Louisiana, the Innocence Project of New Orleans (IPNO) assisted Floyd in filing his first state-court application for post-conviction relief. It was supported by newly-discovered evidence, including: pre-trial fingerprint-comparison results from the Hines scene marked "NOT JOHN FLOYD" and "NOT VICTIM"; pre-trial fingerprint-comparison results from the Robinson scene listed "NOT DAVID HENNESSEY", "NOT VICTIM", and "NOT JOHN FLOYD"; post-trial DNA-test results from hair discovered at that scene; Clegg's post-trial affidavit, stating Detective Dillmann misrepresented Clegg's pre-trial statement that Hines had a distinct sexual preference for black males (the Clegg statement); Detective Dillmann's post-conviction statements, including the statement in his 1989 book, Blood Warning: The True Story of the New Orleans Slasher, that he showed Floyd "two of the grisliest shots" in an attempt to "crack him"; evidence of the detective's subsequent mistreatment of suspects; and Floyd's I.Q. score of 59, discovered through tests not existing at the time of trial.

         In 2010, the Criminal District Court for the Parish of Orleans denied relief from the bench, without providing reasons. Likewise, the Supreme Court of Louisiana denied relief in a 4-3 decision, without providing reasons. Floyd v. Cain, 62 So.3d 57 (La. 2011). But, reasons were assigned in a detailed dissent, which opined, inter alia, "the exculpatory value of the fingerprint evidence is sufficient to undermine confidence in the outcome of Floyd's trial, thus satisfying the requirements for a new trial set forth in Brady". Id. at 59. (Johnson, J., dissenting).

         Following the state-court decisions, Floyd filed in 2011 for federal habeas relief under 28 U.S.C. § 2254, maintaining, inter alia, the State withheld favorable, material evidence in violation of Brady. But, in December 2012, the district court adopted the magistrate judge's report and recommendation (R&R) to deny Floyd's petition as untimely under AEDPA.

         Floyd's January 2013 motion to alter and amend the decision was considered in the light of the Supreme Court's superseding McQuiggin v. Perkins decision. 569 U.S. 383, 386 (2013) (holding AEDPA's time-bar overcome by a valid actual-innocence claim). To overcome the time-bar, Floyd presented such a claim: in the light of newly-discovered exculpatory evidence related to the Hines and Robinson murders, he was actually innocent of murdering Hines. The district court vacated the denial and remanded the petition to the magistrate judge for a R&R in the light of McQuiggin.

         The magistrate judge's resulting R&R recommended: Floyd failed to meet his burden to demonstrate actual innocence; and, accordingly, his petition should be dismissed with prejudice, without considering the merits of his constitutional claims. Floyd v. Cain, 2016 WL 4799093, at *26 (E.D. La. 14 Sept. 2016). But, in a 67-page opinion providing an exhaustive analysis of Floyd's actual-innocence claim, the district court concluded that, in the light of the newly-discovered evidence, "any reasonable, properly instructed juror, evaluating this case with the requisite caution and care, would reasonably doubt Floyd's guilt of the murder of William Hines". Id. Having concluded that Floyd had overcome the time-bar, the court remanded the petition to the magistrate judge for a R&R on the merits. Id.

         Regarding Floyd's constitutional claims, the subsequent R&R recommended granting Floyd's Brady claim. Floyd v. Vannoy, 2017 WL 1837676, at *4 (E.D. La. 8 May 2017). In a 33-page opinion, the district court approved and adopted the R&R, but added additional reasons for the decision. Id. at *1. For example, although the R&R did not find it necessary to consider Clegg's affidavit and his pre-trial statement in the light of the fingerprint-comparison results' being sufficient to support Floyd's Brady claim, the district court opinion considered them to conclude Clegg's statement to Detective Dillmann was additional Brady material. Id. at *12-16.

         The two district-court opinions, totaling 100 pages, provide far greater, and much more graphic, factual detail than does this opinion. As with its decision regarding the time-bar, the district court's merits opinion provides an exhaustive analysis of Floyd's Brady claims and the unreasonableness of the state courts' contrary decisions. Id. at *5-16. In granting relief, the court concluded: the State withheld favorable, material evidence in violation of Brady (the fingerprint-comparison results from the Hines scene and the Clegg statement); and the state-court decisions denying relief were an unreasonable application of clearly-established federal law. Id. at *16. Accordingly, Floyd was awarded habeas relief, with the State's being ordered to retry, or release, him within 120 days of the decision. Id. The district court stayed its order, pending resolution of this appeal. Floyd v. Vannoy, 2017 WL 2688082, at *2- 4 (E.D. La. 22 June 2017).

         II.

         "In a habeas corpus appeal, we review the district court's findings of fact for clear error and its conclusions of law de novo." Lewis v. Thaler, 701 F.3d 783, 787 (5th Cir. 2012) (quoting Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004)). The State claims: Floyd failed to meet the necessary actual-innocence burden to overcome the time-bar for his habeas application; and, in the alternative, the state-court denials of post-conviction relief were, pursuant to AEDPA, neither "contrary to", nor "involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States". 28 U.S.C. § 2254(d)(1).

         Accordingly, our review encompasses three legal standards. First, actual innocence is established through demonstrating that, in the light of newly-discovered evidence, "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt". Schlup v. Delo, 513 U.S. 298, 327 (1995); see also McQuiggin, 569 U.S. at 399. Second, Brady is violated when: the State suppresses evidence; that is favorable to his defense; and material to guilt or punishment. E.g., Brady, 373 U.S. at 87. And third, a state-court decision is an unreasonable application of clearly-established federal law only if fairminded jurists could not disagree that the decision was inconsistent with Supreme Court precedent. E.g., Harrington v. Richter, 562 U.S. 86, 101 (2011).

         A.

         Floyd filed for state post-conviction relief in March 2006, over 23 years after his conviction became final, and contrary to AEDPA's requiring seeking such relief within one-year of the conviction. 28 U.S.C. § 2244(d)(1). Moreover, where, as here, the conviction preceded AEDPA's 26 April 1996 enactment, the limitations period expired one-year from that date. Flanagan v. Johnson, 154 F.3d 196, 200 (5th Cir. 1998) (citing United States v. Flores, 135 F.3d 1000, 1006 (5th Cir. 1998)).

         Nonetheless, in the "extraordinary case", McQuiggin, 569 U.S. at 393 (quoting Schlup, 513 U.S. at 324), in which a prisoner asserts a "credible showing of actual innocence", he may overcome the time-bar, and have his claims considered on the merits, id. at 392; House v. Bell, 547 U.S. 518, 537 (2006); Schlup, 513 U.S. at 316. In that regard, the district court concluded: Floyd's actual-innocence claim ...


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