     Case: 14-30909      Document: 00513356421         Page: 1    Date Filed: 01/26/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                               United States Court of Appeals
                                                                                        Fifth Circuit

                                    No. 14-30909                                      FILED
                                  Summary Calendar                              January 26, 2016
                                                                                 Lyle W. Cayce
                                                                                      Clerk
KEITH BARTHELEMY,

                                                 Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-2335


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Keith Barthelemy, Louisiana state prisoner # 435736, appeals the
district court’s dismissal of his 28 U.S.C. § 2254 petition in which he challenged
his conviction for second degree murder as well as his resulting life sentence.
Barthelemy argues that (1) he was denied his Sixth Amendment right to
confrontation; (2) he was denied his right to conflict-free assistance of counsel;
(3) he was denied the right to compulsory process; and (4) he was denied a fair


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 14-30909

trial due to prosecutorial misconduct. Generally, on appeal from the denial of
a habeas petition, we review the district court’s findings of fact for clear error
and issues of law de novo. Propes v. Quarterman, 573 F.3d 225, 227 (5th Cir.
2009).
      Barthelemy asserts that he was denied his right to confront all witnesses
against him when the trial court allowed Kathy Robertson, a 911 operator, to
authenticate a tape of the 911 call made on the date of the murder. As the
state court and the district court concluded, the statements contained on the
tape of the 911 call were “nontestimonial” in nature and did not run afoul of
the Confrontation Clause because they were “made in the course of police
interrogation under circumstances objectively indicating that the primary
purpose of the interrogation [wa]s to enable police assistance to meet an
ongoing emergency.”      Davis v. Washington, 547 U.S. 813, 822 (2006).
Moreover, the record reveals that Robertson did not “create a record for the
sole purpose of providing evidence against [Barthelemy].” Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 323 (2009). Testimony offered solely for the
purpose of authentication does not fall within the class of evidence prohibited
by the Confrontation Clause. See id. at 322.
      Next, Barthelemy argues that he was denied conflict-free counsel
because Dwight Doskey worked for an organization run by Kerry Cuccia,
counsel for Barthelemy’s co-defendant, Danny Scott. Scott pleaded guilty to a
reduced charge of manslaughter in exchange for testifying against Barthelemy.
The mere fact of multiple representation, without more, does not warrant
automatic reversal or a presumption of prejudice. See Mickens v. Taylor, 535
U.S. 162, 170-73 (2002).     The claimant must demonstrate that the joint
representation created an actual conflict. Id. at 171.




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                                  No. 14-30909

      The state court concluded and the district court concurred that
Barthelemy failed to allege that an actual conflict of interest existed because
he failed to allege that Doskey simultaneously represented two clients with
conflicting interests.     The record reveals that Doskey withdrew from
representing Barthelemy prior to going to work for Cuccia’s organization and
no evidence shows that Doskey had any role in representing Scott or in
brokering Scott’s plea bargain agreement. As Barthelemy cannot demonstrate
that Doskey ever actively represented clients with competing interests, he
cannot demonstrate that a conflict of interest affecting the adequacy of trial
counsel’s performance existed. See Mickens, 535 U.S. at 170-73; cf. Perillo v.
Johnson, 205 F.3d 775, 808 (5th Cir. 2000) (finding actual conflict which
adversely affected counsel’s performance where counsel was appointed to
represent defendant after having represented co-defendant, who was convicted
in prior trial and whom counsel continued to represent when co-defendant
testified   against   defendant   during    defendant’s    trial).   Barthelemy’s
conclusional assertion that it was inevitable that Doskey, however
unintentionally, shared his knowledge of Barthelemy’s case to bolster Scott’s
plea negotiations, is insufficient to rebut by clear and convincing evidence the
presumption of correctness afforded to the state court’s factual findings, see 28
U.S.C. § 2254(e)(1); Brown v. Epps, 686 F.3d 281, 285 (5th Cir. 2012), and does
not demonstrate that an actual, rather than a “theoretical” conflict existed, see
Mickens, 535 U.S. at 170-73.
      Additionally, Barthelemy argues that his right to compulsory process
was violated when the trial court allowed Lakeisha Williams to invoke her
right against self-incrimination. He asserts that Williams’s testimony was
essential to his case and that her testimony would not realistically have
subjected her to prosecution. The defendant’s right of compulsory process is



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                                 No. 14-30909

not absolute and must yield to a claim of the Fifth Amendment’s privilege
against self-incrimination. See United States v. Follin, 979 F.2d 369, 374 (5th
Cir. 1992); United States v. Hernandez, 962 F.2d 1152, 1161 (5th Cir. 1992).
As the state court and the district court concluded, the record reveals that
Williams had “reasonable cause” to invoke her Fifth Amendment protection
because her answers or explanations of why she could not answer were likely
to result in “injurious disclosure[s]” about her involvement in Barthelemy’s
case as an accessory after the fact and also her involvement as a suspect in a
pending murder case. Hoffman v. United States, 341 U.S. 479, 486-87 (1951).
Furthermore, Barthelemy does not indicate what testimony he believed
Lakeisha would have provided and, thus, does not make a “plausible showing
of how [Williams’s] testimony would have been both material and favorable to
his defense.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982).
      Lastly, Barthelemy argues that the prosecutor rendered his trial unfair
by making some improper statements during closing remarks. Barthelemy
fails to address all of the district court’s reasons for denying this issue and,
thus, has abandoned the claim. See Brinkmann v. Dallas Cnty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987) (noting that failure to address district
court’s legal analysis is the same as not appealing the judgment). As such, he
cannot show that the prosecutor’s misconduct was “persistent and pronounced”
or that the evidence of his guilt was so lacking that he could not have been
convicted but for the prosecutor’s improper remarks. See Geiger v. Cain, 540
F.3d 303, 308 (5th Cir. 2008).
      Barthelemy fails to demonstrate that the district court erred in denying
§ 2254 relief. § 2254(d)(1), (d)(2); see Miniel v. Cockrell, 339 F.3d 331, 336-37
(5th Cir. 2003). Accordingly, the judgment of the district court is AFFIRMED.




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