     Case: 18-30347      Document: 00514715458         Page: 1    Date Filed: 11/07/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                      United States Court of Appeals

                                    No. 18-30347
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                   November 7, 2018
                                                                        Lyle W. Cayce
TROY RHODES,                                                                 Clerk


              Petitioner - Appellee

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

              Respondent - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CV-399


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM:*
       This appeal presents two questions: (1) whether Rhodes’s trial counsel
was constitutionally ineffective and (2) whether Rhodes made a sufficient
showing of cause and prejudice to excuse the procedural default of his
ineffective-assistance claim. We answer “yes” to both and affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-30347
I.    Factual and Procedural Background
      In June 2004, a non-unanimous Louisiana jury convicted Petitioner-
Appellee Troy Rhodes for the armed robbery and attempted second-degree
murder of David Blohm, a delivery driver for a bakery, who was shot on June
19, 2002. When Blohm identified Rhodes as the shooter from a photo lineup on
June 25, 2002—six days after he was shot and on the same day he had
undergone major liver-repair surgery—Blohm “was under the influence of pain
medication and the lingering effects of general anesthesia.” At trial, the State
relied almost exclusively on the testimony of Blohm, the victim and the sole
eyewitness.
      On cross-examination, Blohm denied that he was under the influence of
any medication:
      Q: Okay. And when you make [sic] the identification of Troy
      Rhodes, obviously you were still in the hospital. Were you taking
      any pain medication at that time?
      A: I don’t think I was, ma’am.
      Q: This would have been on the – on June 25, about six days, five
      days after the incident.
      A: No ma’am, I was not on anything at that time[.]
      Q: You were not on any pain medication at that time?
      A: (Witness shakes head negatively)

The prosecutors and Rhodes’s trial counsel possessed Blohm’s medical records
documenting that he had received pain medication that day, but Rhodes’s trial
counsel did not use those records to impeach Blohm’s statement.
      Rhodes challenged the conviction in state court on several grounds.
However, he did not assert an ineffective-assistance claim based on his trial
counsel’s failure to impeach Blohm’s testimony until he filed a supplemental
application in the state trial court after the Louisiana Supreme Court had
stayed review of his original state-court application for postconviction relief.
The state trial court did not consider the ineffective-assistance claim, and

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                                       No. 18-30347
instead denied the supplemental application as untimely and repetitive under
articles 930.4 and 930.8 of the Louisiana Code of Criminal Procedure. The state
court of appeal affirmed, and the Louisiana Supreme Court denied relief
without opinion. Rhodes then petitioned for a writ of habeas corpus in federal
court in 2011, reasserting the ineffective-assistance claim—which the state
court had denied as repetitive and untimely—based on his trial counsel’s
failure to impeach Blohm’s testimony with Blohm’s medical records.
       The district court stayed the federal proceedings pending the resolution
of additional proceedings in state court, and, after Rhodes exhausted his state-
court remedies, reopened the federal case. 1 The district court referred the case
to a magistrate judge, and, in July 2013, the magistrate judge issued a Report
and Recommendation concluding that (1) Rhodes’s ineffective-assistance claim
was procedurally defaulted based on adequate, independent state-law grounds,
and (2) Rhodes had not made a sufficient showing of cause, prejudice, or a
fundamental miscarriage of justice to avoid the procedural bar. The district
court vacated the magistrate judge’s Report and Recommendation based on
Rhodes’s subsequent motion to amend his petition to account for the then-
recent United States Supreme Court decisions in Martinez v. Ryan, 566 U.S. 1
(2012), and Trevino v. Thaler, 569 U.S. 413 (2013). The district court referred
the case to the magistrate judge for a second Report and Recommendation.
This time the magistrate judge recommended that the petition be dismissed
with prejudice.
       Rhodes objected to the second Report and Recommendation, but the
district court adopted the recommendation that Rhodes’s ineffective-assistance



       1 Two district court decisions are on appeal: (1) the March 8, 2018 Order and Reasons,
and (2) the September 19, 2014 Order and Reasons. The factual and procedural background
of the federal proceedings is set out in detail in those orders, so only a summary is necessary
here.
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                                         No. 18-30347
claim was procedurally defaulted based on articles 930.4 and 930.8 of the
Louisiana Code of Criminal Procedure. However, the district court rejected the
recommendation that Rhodes had not made a sufficient showing of cause and
prejudice to overcome the procedural bar. Instead, that court held that
Rhodes’s trial counsel was constitutionally ineffective under Strickland v.
Washington, 466 U.S. 668 (1984). It also held that under the second prong of
the Martinez exception to procedural default—ineffective assistance of
postconviction counsel—the record confirmed that Rhodes’s postconviction
counsel “at no time requested to inspect or see trial counsel’s file,” but that
“more information” was needed to resolve Rhodes’s claim that his
postconviction counsel was ineffective.
       The case was reassigned to a different district judge in January 2016.
The    parties      submitted      supplemental       briefing   on     whether    Rhodes’s
postconviction counsel was ineffective, which would excuse the procedural
default. The district court held that the procedural default was excused
because Rhodes had established cause and prejudice based on his
postconviction counsel’s failure to request Rhodes’s trial counsel’s records. The
court granted Rhodes’s petition, set aside his sentence, and ordered his release
unless the State granted a new trial within 120 days. Warden Vannoy timely
appealed.
                                            II. ANALYSIS
A.     Ineffective Assistance of Trial Counsel
       “Ineffective assistance of counsel is a mixed question of law and fact
which we review de novo.” 2 The legal standard for Rhodes’s ineffective-
assistance claim “is the familiar one derived from Strickland: the petitioner
must show both that his ‘counsel’s representation fell below an objective


       2   Boyle v. Johnson, 93 F.3d 180, 187 (5th Cir. 1996).
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                                   No. 18-30347
standard of reasonableness’ and that this deficiency prejudiced him.” 3 “An
error is prejudicial if it results in ‘a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” 4 It is Rhodes’s burden to establish prejudice. 5
      On the first prong, deficient performance of trial counsel, the original
district judge held that Rhodes’s trial counsel’s performance fell below an
objective standard of reasonableness because, despite having Blohm’s medical
records, “counsel offered no real challenge to [Blohm’s] testimony.” The court
rejected the State’s argument that this failure was a tactical decision,
concluding instead that such a “grievous omission” could not accurately be
described as sound trial strategy, and that “even according substantial
deference to counsel’s decision-making,” Rhodes had established deficient
performance.
      On the second prong, prejudice, the district court evaluated the evidence
presented at trial and concluded that Rhodes’s trial counsel’s failure to
impeach Blohm created a reasonable probability of a different outcome at trial.
The court pointed out many inconsistencies with the other evidence presented
at trial, including that: (1) no physical evidence connected Rhodes to the crime
scene; (2) none of the fingerprints taken at the scene matched Rhodes’s; (3)
another witness, Basem Abed, testified that he had seen Rhodes at the A&D
Food Store 45 minutes before the shooting, but did not see him during or after
the shooting; (4) Rhodes was a regular customer of the store and came in
almost every day; (5) no fingerprints were taken from the shotgun that was
allegedly used to commit the crime; (6) law enforcement failed to connect



      3  Thomas v. Vannoy, 898 F.3d 561, 572 (5th Cir. 2018) (quoting Strickland v.
Washington, 466 U.S. 668, 688 (1984)).
      4 Id. (quoting Strickland, 466 U.S. at 694).
      5 Id.

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                                  No. 18-30347
Rhodes to the residence at which the shotgun was found and did not question
any of the residents of the house, “who could just as easily have used the gun”
to commit the crime; (7) the search of Rhodes’s house recovered “no meaningful
evidence” of his involvement; (8) although police had two other suspects, they
were placed in a photo lineup only once and were not included in subsequent
lineups; (9) Blohm gave varying descriptions of the crime and the weapon, and
his initial statements to the police were inconsistent with his trial testimony;
(10) there were problems with the identification process, including (a)
inconsistencies in the descriptions of the perpetrator’s complexion (Blohm
initially reported that the perpetrator had a “dark complexion,” but two days
later described “light brown skin”), (b) age (anonymous 911 callers initially
described the perpetrator as a teenager), and (c) a lack of specific, identifiable
characteristics (Blohm never described Rhodes’s “seemingly distinctive” gold
teeth); and (11) testimony that Blohm had recognized Rhodes as a regular
customer of the store before identifying him as the shooter.
      In addition to noting those inconsistencies that show that the evidence
supporting guilt “was already severely compromised in several respects,” the
court thoroughly analyzed the medical records and concluded that they would
have undermined Blohm’s credibility and served as valuable impeachment
evidence. The court observed that a “rational jury would have had concerns
about whether the victim, who had never described the perpetrator’s face, had
accidentally picked out a vaguely familiar one in an overly eager attempt to
hold someone responsible for this heinous crime.”
      The district court held that Rhodes had established deficient
performance and prejudice, making his trial counsel constitutionally
ineffective. We agree and affirm.




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                                No. 18-30347
B.    The District Court’s Factual Findings
      Warden Vannoy’s primary argument is that the original district judge’s
finding that Blohm’s medical records showed that he was medicated when he
identified Rhodes is clearly erroneous. That judge made the following findings:
      Having reviewed the records in question, the Court finds that they
      do in fact impeach or rebut this testimony.

             The record confirms that the victim was admitted to Charity
      Hospital on June 19, 2002 following this incident and transferred
      to Slidell Medical on June 25, 2002. During that time, the victim
      appears to have had at least 3 surgeries. Further, according to the
      Operative Report from June 25, 2002, the victim received major
      surgery to repair his liver on June 24 and 25. While the Operative
      Report does not say when on June 25 this surgery took place, the
      records contain a Doctor’s Order form signed June 25, 2002 at 6:45
      AM, which indicates “transfer from SICU to LSU Surgery.”
      According to the police report, the victim identified petitioner at
      Charity hospital in a photo-array at 5:52 P.M.

      ...

      What these records ultimately reflect is that petitioner was given
      a prescription for oral acetaminophen/oxycodone (Percocet) every
      4 to 6 hours and intravenous morphine sulfate injections every 2
      hours, both as needed to relieve pain from June 22, 2002 until June
      25, 2002, and further intravenous Promethazine HCL as needed to
      relieve pain from June 22, 2002 until July 22, 2002. These records
      indicate when each medication is administered and show certain
      gaps in administration. Nevertheless, the victim was on a
      continuous dose of one or more of his pain medications from at
      least June 23 to June 24.

            Although petitioner has not presented any Medication
      Administration form from June 25, 2002, this absence is not fatal
      to his claim. Other records persuasively indicate that the victim
      was at least taking morphine when he identified petitioner from
      the array on June 25 at 5:52 P.M. First, petitioner has presented
      a “Fall Risk Assessment” form, completed for the victim by Charity
      Hospital medical staff, which shows that the victim received the

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                           No. 18-30347
 same medication sub-score for each day he was hospitalized at
 Charity - 6 for “Schedule II, III, IV drugs PRN.” Although “PRN”
 means “as needed,” it makes sense, given the apparent purpose of
 this form, that the score corresponds to medication actually
 administered.

       Second and most importantly, the petitioner has presented
 the victim’s Doctor’s Order forms for June 19 to 25, 2002. Like the
 aforementioned Medication Administration records, the June 22
 Doctor’s Order form shows that the victim was prescribed 2 to 4
 mg of intravenous morphine sulfate every two hours “PRN” or “as
 needed” for breakthrough pain. The June 25 Doctor’s Order that
 mentions the victim’s transfer to surgery also contains a
 prescription for intravenous morphine sulfate injections every two
 hours, except there is no “PRN” designation. Notably, the victim’s
 Percocet prescription retained its PRN designation even in the
 June 25 Doctor’s Order form. Thus, it appears that beginning
 whenever the victim was transferred to surgery, morphine sulfate
 was no longer being administered on an “as needed” basis. The
 need for the drug had been predetermined by the physician, based
 on the surgery.

       As petitioner has argued, for other non-PRN drugs, the
 Doctor’s Order form expressly indicates when, for some reason, the
 drug is not administered. No such indication is given for the
 morphine sulfate after June 25, Thus, the records show that on
 June 25, in addition to having general endotracheal anesthesia at
 some point before major surgery on his liver, the victim was being
 administered morphine sulfate injections regularly at 2-hour
 intervals.

        As to when these injections stopped, the record is somewhat
 confusing. On the one hand, there is a Doctor’s Order form
 captioned “Transfer to Slidell Memorial,” indicating new
 prescriptions that do not include morphine; this form is signed and
 dated June 25 at 3:46 P.M. Assuming the victim’s last injection as
 given around 3:45 p.m., the effects of the drug would have been
 just wearing off around 5:52 P.M. when the victim identified
 petitioner. However, this record does not contain the 12 and 24
 hour “chart” checks that the other Doctor’s Order forms have.
 These checks only appear on the original June 25 Doctor’s Order

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                                  No. 18-30347
      form that lists the morphine prescription, suggesting that it
      continued to remain in force within Charity Hospital, until the
      victim transferred to Slidell Medical. The checks last until June
      26, 2002 at 8:25 A.M., when it appears that the victim was actually
      transferred - the last entry on the record is “copy chart for
      transfer.” Thus the form dated June 25 at 3:46 P.M. appears to
      state the victim’s post-transfer prescriptions. The morphine
      injections themselves lasted up until the time of transfer on the
      morning of June 26.

      Warden Vannoy contends that these findings fail to account for the
medical definition of “breakthrough pain,” which does not refer to persistent
pain expected to follow surgery, but rather refers to “clinical circumstances
wherein patients who have controlled baseline pain experience severe episodes
of pain that breaks through the medical therapy (usually opioids) that has
relieved the baseline pain.” 6 According to the Warden, the June 25, 2002
morphine prescription for breakthrough pain does not establish that Blohm
was under the influence of morphine when he identified Rhodes as the shooter
because it does not indicate that Blohm was experiencing “breakthrough” pain.
Warden Vannoy also contends that the “Falls Risk Assessment” does not
support the district court’s conclusions because that assessment established
only that Blohm was prescribed morphine and that morphine was available to
him, but does not establish that morphine was actually administered.
      “[W]e review findings of fact for clear error . . . .” 7 The district court did
not clearly err in finding that Blohm was under the influence of medication on
June 25, 2002 when he identified Rhodes. After being shot on June 19, Blohm
underwent three surgeries, one on June 19, another on June 24, and the third
on the morning of June 25. While Blohm was still in the hospital, he identified



      6  See PERRY FINE, THE DIAGNOSIS AND TREATMENT OF BREAKTHROUGH PAIN 1 (Oxford
Univ. Press 2008).
       7 Cannon v. Johnson, 134 F.3d 683, 686 (5th Cir. 1998).

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                                   No. 18-30347
Rhodes in a photo lineup. That was at 5:52 PM on June 25. A review of the
medical records and the record on appeal supports the district court’s
conclusion that Blohm was under the influence of morphine or the lingering
effects of anesthesia following surgery earlier in the day. Additionally, and
contrary to Warden Vannoy’s contention, the fact that Blohm was prescribed
morphine for breakthrough pain after undergoing major liver-repair surgery
leads to a reasonable inference either that morphine was actually administered
for pain after that surgery or that the prescribing doctor ordered Percocet for
breakthrough pain after determining that Blohm was experiencing such pain.
Finally, even if Blohm were not in fact under the influence of morphine when
he identified Rhodes on June 25, 2002, the medical records showing that he
had been prescribed morphine twice on that day, with one prescription for
Percocet at 3:46 PM, approximately two hours before he identified Rhodes,
would have critically impeached Blohm’s categorical denial that he was taking
pain medication. The district court’s factual findings on this issue were not
clearly erroneous.
C.     Trial Strategy
       Warden Vannoy next contends that, because of the complex nature of the
medical records at issue, Rhodes’s trial counsel would have had to call a
medical expert to effectively impeach Blohm’s testimony. According to Warden
Vannoy, the complicated notations, such as “Percocet . . . tab po q4-8 prn for
pain,” would not have been effective to impeach Blohm and would have been
confusing to the jury.
       As the district court explained, Rhodes’s trial counsel’s decision to ask
the witness about pain medications, but without using the available medical
records to impeach him, “resulted in a situation where [Blohm] was allowed to
falsely bolster the credibility of the identification with impunity.” Rhodes’s
counsel also “failed to even mention that the victim had been in surgery the
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                                        No. 18-30347
same day as the identification, a fact that she had brought out in the [earlier]
probable cause hearing.” We agree with the district court’s conclusion that the
record does not support a conclusion that Rhodes’s counsel might have been
tactically limiting the scope of her cross-examination, and that her failures
“cannot be accurately described as ‘sound trial strategy.’”
D.     Prejudice
       Considering (1) the State’s reliance at trial on Blohm’s identification of
Rhodes, (2) the second district judge’s determination that Rhodes was
“convicted almost entirely on the basis of” Blohm’s identification, and (3) the
inconsistencies in the other evidence presented at trial, Rhodes’s counsel’s
failure to impeach Blohm with the available contrary medical records
prejudiced Rhodes. We conclude that there is “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” 8
E.     Procedural Default
       The next question is whether the procedural default of Rhodes’s claim of
ineffective assistance of trial counsel is excusable. “We review the district
court’s [or grant] of federal habeas relief based on a state procedural ground de
novo.” 9
       Under Martinez and Trevino, to establish “cause” to excuse a procedural
default, a petitioner must show that “(1) the claim of ‘ineffective assistance of
trial counsel’ was a ‘substantial’ claim; (2) the ‘cause’ consisted of there being
‘no counsel’ or only ‘ineffective’ counsel during the state collateral review
proceeding; (3) the state collateral review proceeding was the ‘initial’ review
proceeding in respect to the ‘ineffective-assistance-of-trial-counsel claim’; and



       8   Thomas, 898 F.3d at 572 (quoting Strickland, 466 U.S. at 694).
       9   Pitts v. Anderson, 122 F.3d 275, 278 (5th Cir. 1997).
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                                     No. 18-30347
(4) state law requires that an ‘ineffective assistance of trial counsel [claim] . . .
be raised in an initial-review collateral proceeding.’” 10 In this case, prongs one
and four are satisfied because Rhodes’s trial counsel was constitutionally
ineffective. Prong three is satisfied by this court’s conclusion that the
Martinez/Trevino rule applies in Louisiana. 11 The only remaining issue is
whether Rhodes has established the presence of prong two, viz., that his
postconviction counsel was constitutionally ineffective in failing to obtain
Blohm’s medical records.
      The facts relating to this issue are undisputed, summarized by the
district court as follows:
             Kevin Boshea represented [Rhodes] in his application for
      post-conviction relief. In that application, Boshea asserted claims
      of ineffective assistance of counsel based on trial counsel’s failure
      to lodge certain objections, but did not assert a claim based on trial
      counsel’s failure to impeach the victim with the victim’s medical
      records because Boshea never saw the records in question. Boshea
      admits that, had he seen the records indicating that the victim
      identified [Rhodes] while under the influence of powerful
      medication, he would have asserted a claim of ineffective
      assistance of trial counsel for failure to impeach.

            At the time that Boshea was preparing [Rhodes’s] post-
      conviction application, the victim’s medical records existed in at
      least two places: the complete file of [Rhodes’s] trial attorney
      housed by the public defender, and the files of the hospitals at
      which the victim was treated. Boshea never made any request to
      the hospitals for the records. Boshea did make a request to the
      chief public defender for the file of [Rhodes’s] trial counsel. On
      April 23, 2007, Boshea received a file from the defender’s office
      with a letter stating that the file was complete. Boshea could tell,
      however, that the file was not complete. Boshea states by affidavit
      that, at that time, he “considered it a reasonable possibility that


      10  United States v. Trevino, 569 U.S. 413, 423 (2013) (quoting Martinez, 566 U.S. 1,
13–18 (2012)).
       11 See Coleman v. Goodwin, 833 F.3d 537, 543 (5th Cir. 2016).

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                             No. 18-30347
  portions of [trial counsel’s] file may have been lost or destroyed by
  Hurricane Katrina,” and that he “did not consider it likely that
  additional requests to the public defender’s office . . . would have
  resulted in the discovery of additional material.” This assumption
  was never confirmed, however, as Boshea never contacted the
  public defender’s office again.

        On November 30, 2007, the state court held an evidentiary
  hearing on [Rhodes’s] bare-bones post-conviction application.
  [Rhodes’s] trial counsel was called to testify. She testified that the
  copy of her trial file that Boshea possessed represented only “one
  tenth of [her] case file,” and was missing “the initial police report;
  the supplemental police reports; the witness identification; that is
  the photographic lineups; the records from the hospital regarding
  the alleged victim’s injuries[; and] all my notes from the several
  hearings that were held in this matter.” Trial counsel also said that
  she had turned her complete file over to the public defender’s office.

          At the conclusion of the evidentiary hearing, Boshea
  requested that the office of the district attorney provide him with
  its file in the matter and that the hearing remain open pending
  that file’s delivery. The state did not object, but did not have the
  file in court that day. On March 24, 2008, the district attorney’s
  custodian of records notified Daniel Pipes, the assistant district
  attorney assigned to the matter, that the file could not be located.
  Mr. Pipes relayed that information to Boshea at some point before
  Boshea submitted petitioner’s application to the state court for
  final consideration. The state trial court denied [Rhodes’s]
  application for post-conviction relief from the bench following oral
  argument on April 22, 2008.

        Boshea made a second request to the district attorney’s office
  for the file on November 14, 2008, but was told again that it could
  not be located.

         On July 6, 2009, responding to a pro se request by [Rhodes],
  the public defender’s office located the remainder of the trial file
  and delivered it to [Rhodes]. The public defender’s office does not
  offer an explanation for why the complete file was not delivered
  the first time. However, Stephen Singer, who worked at the office
  in senior roles from 2006 to 2009, states by affidavit that the files

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                                     No. 18-30347
      were not damaged in Hurricane Katrina and were not reorganized
      between the requests for the file by Boshea and [Rhodes] himself.
      He further opines that, had Boshea asked again for the complete
      file, the office would have been able to find it.

      The district court held that Boshea’s investigation, which consisted of
one request to the public defender and one to the district attorney, was
unreasonable, especially considering that Boshea knew that a significant
portion of the file was missing but failed to search further. The deficient
investigation prejudiced Rhodes because it prevented him from timely
asserting his meritorious ineffective-assistance claim in state court.
      “In assessing the reasonableness of an attorney’s investigation, . . . a
court must consider not only the quantum of evidence already known to
counsel, but also whether the known evidence would lead a reasonable
attorney to investigate further.” 12 Boshea had an obligation to “explore all
avenues leading to facts relevant to the merits of the case.” 13
      Even though the file Boshea reviewed contained a letter from the public
defender’s office stating that it was complete, Boshea knew that the file was
not complete. Despite that knowledge, Boshea never followed up with the
public defender’s office or took any steps to obtain Blohm’s medical records
from the hospital. Given the importance of trial counsel’s complete file,
Boshea’s failure to investigate further and to obtain that file was objectively
unreasonable. For the reasons stated in detail by the district court, Boshea’s
failure to investigate was unreasonable, prejudiced Rhodes, and therefore was
constitutionally ineffective.




      12   Wiggins v. Smith, 539 U.S. 510, 526 (2003).
      13   STANDARDS FOR CRIMINAL JUSTICE § 4-4.1 (AM. BAR ASS’N 1993).
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                                 No. 18-30347
                              III.     Conclusion
      Rhodes has established that his trial counsel and postconviction counsel
were constitutionally ineffective. Under Martinez and Trevino, that excuses
the procedural default of his ineffective-assistance claim. Rhodes is therefore
entitled to a writ of habeas corpus.
AFFIRMED.




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