     Case: 12-70022   Document: 00512626422     Page: 1   Date Filed: 05/12/2014




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

                                                                           FILED
                                No. 12-70022                           May 12, 2014
                                                                      Lyle W. Cayce
JESSIE HOFFMAN,                                                            Clerk


                                           Petitioner - Appellant
v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                           Respondent - Appellee




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


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Jessie Hoffman was convicted of first-degree murder by a Louisiana jury
and sentenced to death. His conviction was upheld by the Louisiana Supreme
Court and he was denied state post-conviction relief. The district court denied
federal habeas relief, and granted a Certificate of Appealability (“COA”). We
AFFIRM the district court’s denial of habeas relief.
                                      I.
                                      A.
      On June 25, 1998, a Louisiana jury convicted Jessie Hoffman of first-
degree murder in the death of Mary Elliot. Two days later, the jury found four
aggravating circumstances justifying a death sentence: aggravated rape,
aggravated kidnapping, armed robbery, and that the offense was committed in
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                                  No. 12-70022
an especially heinous, atrocious or cruel manner in that the victim was
subjected to torture, physical abuse, or pitiless infliction of unnecessary pain
and suffering. 1 On September 11, 1998, the state trial court (hereinafter, “trial
court”) imposed a sentence of death.
      That Hoffman was responsible for the kidnapping, robbery, rape, and
death of Elliot is virtually unchallenged. The evidence at trial showed that on
the night of November 27, 1996, Hoffman kidnapped Elliot at gunpoint as she
left her parking garage in downtown New Orleans after work. 2 He forced Elliot
to drive her car to an ATM machine and withdraw around $200 from her
account. 3 As the Louisiana Supreme Court noted: “The ATM video tape shows
the terror on Ms. Elliot’s face as she withdrew money from her account, and
Hoffman can be seen standing next to his victim.” 4 As his girlfriend would later
corroborate, she and Hoffman went shopping afterwards and he paid in cash
for several items. 5 Additionally, the State presented DNA and serological
evidence linking Hoffman to Elliot. 6
      Hoffman then forced Elliot to drive to a remote area in St. Tammany
Parish. 7 Elliot repeatedly begged Hoffman not to hurt her, and he told her he
would not because she was cooperating. 8 Elliot “offered herself” while begging
for her safety, and Hoffman proceeded to have sexual intercourse with her, all
the while still armed with the handgun. 9 Hoffman claimed that the sex was




      1  See La. Code Crim. Proc. Ann. art. 905.4 (listing the different aggravating
circumstances).
      2 State v. Hoffman, 768 So. 2d 542, 549–50 (La. 2000).
      3 Id. at 550.
      4 Id.
      5 Id.
      6 Id.
      7 Id.
      8 Id.
      9 Id.

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                                      No. 12-70022
consensual, 10 but the jury did not believe him, and found aggravated rape as
one of the aggravating circumstances supporting its verdict of death.
      In his final videotaped confession, Hoffman confessed to kidnapping,
robbing, and having sex with Elliot. 11 Hoffman claimed that he shot Elliot
during a struggle over the gun at a boat-launch, where the car had pulled over,
an assertion the State maintains is a lie and which became the focal point of
the trial. Elliot’s body was not found by the boat-launch. Rather, it was found
approximately 150 feet away at a small, makeshift dock, accessible by land
only via a long dirt path, overgrown with vegetation and in an area full of trash.
      The prosecutors argued that Hoffman must have known about the dock
beforehand, and had planned to kill Elliot there. Under this theory of the case,
subsequent to raping Elliot, Hoffman forced her to get out of her car while she
was completely nude, and marched her down the dirt path. 12 Hoffman forced
Elliot to kneel and then shot her in the head, execution-style. 13 Elliot probably
survived for a few minutes after being shot, but Hoffman left her on the dock,
completely nude, on a cold November evening. 14 After kidnapping, robbing,
raping, and killing Elliot, Hoffman disposed of her belongings and his gun, and
returned to work two and a half hours after he had left for his “lunch hour.” 15
The State relied in part on this version of facts to argue premeditation which
in turn showed specific intent, a necessary prerequisite under Louisiana law
for a conviction of first-degree murder. 16




      10 Id.
      11 Id. at 549.
      12 Id. at 550.
      13 Id.
      14 Id.
      15 Id.
      16 See La. Rev. Stat. Ann. § 14:30.

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                                      No. 12-70022
                                            B.
       On direct appeal, the Louisiana Supreme Court affirmed Hoffman’s
conviction and sentence, 17 and denied his application for rehearing. 18 The
Supreme Court denied his petition for writ of certiorari. 19 Hoffman then filed
a petition for state post-conviction relief on July 20, 2001, and a supplemental
petition for post-conviction relief on December 10, 2003. The state post-
conviction court (hereinafter, “state court”) granted an evidentiary hearing
only for the claim made in the supplemental petition that his counsel were
ineffective in investigating and presenting mitigating evidence for the penalty
phase of the trial. Hoffman also filed a revised supplemental petition in order
to correct minor errors on October 20, 2006.
       Much of the testimony at the evidentiary hearing upon the ineffective
assistance of counsel claim came in by deposition. Hoffman claimed that
several pieces of physical evidence previously unavailable to him were made
available for his review, and filed requests to test the evidence. After the
evidentiary hearing and before any state court decision, on April 17, 2007,
Hoffman filed an amendment to his supplemental petition raising three new
claims.
       The state court denied relief on May 1, 2007, referring only to the claims
in the revised supplemental petition and offering reasons only for its denial of
the ineffective assistance of counsel claim. Hoffman applied for a writ of
discretionary review from the Louisiana Supreme Court on October 1, 2007.
After initially refusing to accept many of the exhibits in the attached appendix,
the Louisiana Supreme Court accepted some. Since this meant that Hoffman’s



       17 Hoffman, 768 So. 2d at 591; see also State v. Hoffman, 768 So. 2d 592 (per curiam)
(supplementing original opinion).
       18 Hoffman, 768 So. 2d at 542.
       19 Hoffman v. Louisiana, 531 U.S. 946, 946 (2000).

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                                        No. 12-70022
pleadings, including the revised supplemental petition and the amendment,
would not be presented to the Louisiana Supreme Court as exhibits, Hoffman
filed a supplemental writ application asserting the same claims. On December
12, 2008, the Louisiana Supreme Court denied the writ applications in a
summary opinion. 20
         On March 10, 2009, Hoffman timely filed a petition for a writ of habeas
corpus in the U.S. District Court for the Eastern District of Louisiana. More
than three years later, 21 the district court denied relief and granted a COA.
Hoffman timely appeals.
                                             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, applying the same standards
to the state court’s decision as did the district court.” 22
         Under 28 U.S.C. § 2254(d), we cannot grant a writ of habeas corpus with
respect to any claim adjudicated on the merits in state court unless such
adjudication:

                  (1) resulted in a decision that was contrary to, or
                      involved an unreasonable application of, clearly
                      established Federal law, as determined by the
                      Supreme Court of the United States; or
                  (2) resulted in a decision that was based on an
                      unreasonable determination of the facts in light of
                      the evidence presented in the State court
                      proceeding. 23




         20   State v. Hoffman, 997 So.2d 554, 554 (La. 2008) (“Denied.”).
         21   Hoffman v. Cain, No. 09-3041, 2012 WL 1088832, at *1–34 (E.D. La. March 30,
2012).
          Lewis v. Thaler, 701 F.3d 783, 787 (5th Cir. 2012) (internal quotation marks
         22

omitted); see also Higgins v. Cain, 720 F.3d 255, 260 (5th Cir. 2013).
      23 28 U.S.C. § 2254(d).

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                                      No. 12-70022
For a challenge to a state court decision under § 2254(d)(1), the Supreme Court
has clarified that the “contrary to” inquiry is different from the “unreasonable
application” inquiry. 24 A state court’s decision is “contrary to” clearly
established federal law if “the state court arrives at a conclusion opposite to
that reached by [the Supreme Court] on a question of law or if the state court
decides a case differently than [the Supreme Court] has on a set of materially
indistinguishable facts.” 25 A state court’s decision involves an “unreasonable
application” of clearly established federal law if “the state court identifies the
correct governing legal principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” 26 In
reviewing a state court’s decision under the “unreasonable application” prong,
we focus on “the ultimate legal conclusion that the state court reached and not
on whether the state court considered and discussed every angle of the
evidence.” 27 The Supreme Court has clarified that when a claim is adjudicated
on the merits, for the purposes of review under § 2254(d)(1), the record is
limited to the one before the state court, even if the state court issued a
summary affirmance. 28
      A challenge to a state court decision under § 2254(d)(2) challenges the
determination of facts by the state court. 29 Under 28 U.S.C. § 2254(e)(1), “a
determination of a factual issue made by a State court shall be presumed to be
correct” and the habeas petitioner “shall have the burden of rebutting the
presumption      of   correctness      by    clear     and     convincing      evidence.” 30



      24 Williams v. Taylor, 529 U.S. 362, 412–13 (2000).
      25 Id. at 413.
      26 Id.
      27 Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc) (per curiam).
      28 Cullen v. Pinholster, 131 S. Ct. 1388, 1398, 1402 (2011).
      29 28 U.S.C. § 2254(d)(2).
      30 Id. § 2254(e)(1).

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                                         No. 12-70022
Section 2254(e)(1) is the “arguably more deferential standard.” 31 The Supreme
Court has recognized a division among the circuits on the interplay between
these two statutory provisions, 32 but has yet to resolve this question. 33
Regardless, a state court’s factual determination is “not unreasonable merely
because the federal habeas court would have reached a different conclusion in
the first instance.” 34 For claims that are not adjudicated on the merits in the
state court, we apply a de novo standard of review. 35
       Finally, under AEDPA, a habeas petitioner who has failed to develop the
factual basis of a claim in state court must show two things to be granted an
evidentiary hearing. 36 First, the petitioner has to show either that the claim
relies on 1) “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable” or 2)
“a factual predicate that could not have been previously discovered through the
exercise of due diligence.” 37 Second, the petitioner has to show that “the facts
underlying the claim would be sufficient to establish by clear and convincing
evidence that but for constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.” 38 Even assuming that a
petitioner clears these hurdles, however, we review the district court’s denial




       31     Wood v. Allen, 558 U.S. 290, 301 (2010).
       32     Id. at 299 (“[W]e granted review of a question that has divided the Courts of Appeals:
whether, in order to satisfy § 2254(d)(2), a petitioner must establish only that the state-court
factual determination on which the decision was based was ‘unreasonable,’ or whether
§ 2254(e)(1) additionally requires a petitioner to rebut a presumption that the determination
was correct with clear and convincing evidence.”)
           33 Id. at 300 (“Although we granted certiorari to resolve the question of how

§§ 2254(d)(2) and (e)(1) fit together, we find once more that we need not reach this question
. . . .”).
           34 Id. at 301.
           35 Wright v. Quarterman, 470 F.3d 581, 591 (5th Cir. 2006).
           36 28 U.S.C. § 2254(e)(2).
           37 Id. § 2254(e)(2)(A).
           38 Id. § 2254(e)(2)(B).

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                                       No. 12-70022
of an evidentiary hearing for an abuse of discretion. 39
                                            III.
       Hoffman first claims that his counsel were ineffective in the penalty
phase of the trial in two respects—that trial counsel failed to properly prepare
for the mitigation phase of the trial and that trial counsel failed to properly
prepare and present the circumstances of the crime.
                                             A.
       Hoffman’s two Strickland claims reach us on different procedural
footings.
       First, the state court rejected the claim that trial counsel failed to
properly investigate the mitigating factors for failure of proof as to deficient
performance; the federal district court reached the same conclusion and added
an additional finding of no prejudice. We thus review the claim of deficient
performance under the deferential standard of § 2254 and the finding of no
prejudice de novo.
       Second, the state court did not expressly address the claim that trial
counsel were ineffective in investigating and presenting evidence that
supported their theory of the crime, a claim that was presented in the
amendment to the supplemental petition. The state court did not mention any
of the claims in the amendment when denying relief. The initial question is
whether this claim was adjudicated on the merits, triggering § 2254(d)
deference. 40




       39 Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir. 2000); see also Morris v. Thaler, 425
F. App’x 415, 422 (5th Cir. 2011); Woods v. Thaler, 399 F. App’x 884, 898 (5th Cir. 2010).
       40 While Hoffman’s application to the Louisiana Supreme Court for a writ of review

was denied, this is not necessarily a denial on the merits of its legal questions. State v.
Fontenot, 550 So. 2d 179, 179 (La. 1989); see also Alex v. Rayne Concrete Serv., 951 So. 2d
138, 145 n.6 (La. 2007).
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                                     No. 12-70022
      In Harrington v. Richter, 41 a defendant petitioned the California
Supreme Court for a writ of habeas corpus. 42 The California Supreme Court
denied the petition in a “one-sentence summary order.” 43 Even though no
explanation accompanied the decision, the Supreme Court held that § 2254(d)
still applied. 44 “When a federal claim has been presented to a state court and
the state court has denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any indication or state-
law procedural principles to the contrary.” 45 The Supreme Court did allow that
the “presumption may be overcome when there is reason to think some other
explanation for the state court’s decision is more likely.” 46 More recently, in
Johnson v. Williams, 47 the habeas petitioner raised a federal claim and the
“state court rule[d] against the defendant and issue[d] an opinion that
addresse[d] some issues but d[id] not expressly address the federal claim in
question.” 48 The Court applied the Richter presumption, 49 explaining that
“[w]hen a state court rejects a federal claim without expressly addressing that
claim, a federal habeas court must presume that the federal claim was
adjudicated on the merits—but that presumption can in some limited
circumstances be rebutted.” 50 According to the Court, the presumption that a
federal claim was adjudicated on the merits could be rebutted “either by the



      41  131 S. Ct. 770 (2011).
      42  Id. at 783.
       43 Id.
       44 Id. at 784.
       45 Id. at 784–85.
       46 Id. at 785.
       47 133 S. Ct. 1088 (2013).
       48 Id. at 1091.
       49 Id. at 1094 (“Although Richter itself concerned a state-court order that did not

address any of the defendant’s claims, we see no reason why the Richter presumption should
not also apply when a state-court opinion addresses some but not all of a defendant’s
claims.”).
       50 Id. at 1096.

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                                       No. 12-70022
habeas petitioner (for the purpose of showing that the claim should be
considered by the federal court de novo) or by the State (for the purpose of
showing that the federal claim should be regarded as procedurally
defaulted).” 51 For example, “a federal claim [that] is rejected as a result of sheer
inadvertence,” would not be afforded the Richter presumption. 52
       Here, the parties fail to rebut the Richter presumption. Although both
parties treat the claim as not having been adjudicated on the merits, neither
party briefs the Richter presumption. 53 As the Court has made clear, the
parties bear the burden of rebutting the presumption. 54 Given these
considerations, we apply the Richter presumption here, assuming that the
claim was adjudicated on the merits and giving the deference ordered by
§ 2254(d). 55
                                             B.
       The metric is now rote. Under Strickland v. Washington, 56 a successful
ineffective assistance of counsel claim must satisfy two distinct prongs:

                First, the defendant must show that counsel’s
                performance was deficient. This requires showing that
                counsel made errors so serious that counsel was not
                functioning as the “counsel” guaranteed the defendant
                by the Sixth Amendment. Second, the defendant must
                show that the deficient performance prejudiced the
                defense. This requires showing that counsel’s errors


       51  Id.
       52  Id. at 1097.
        53 It must be noted that Johnson v. Williams was a Supreme Court decision that was

issued on February 20, 2013. The State, however, submitted its appellate brief on February
5, 2013. Hoffman filed his reply brief on February 22, 2013. He clearly cites to Williams in
his reply brief.
        54 Williams, 133 S. Ct. at 1096.
        55 Given the Richter presumption, an evidentiary hearing on this claim is not allowed

for the § 2254(d) inquiry and the district court did not err in not granting a hearing on this
claim.
        56 466 U.S. 668 (1984).

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                                     No. 12-70022
               were so serious as to deprive the defendant of a fair
               trial, a trial whose result is reliable. 57

       To satisfy the deficient performance prong, “the defendant must show
that   counsel’s        representation   fell    below     an   objective   standard    of
reasonableness.” 58 “[T]he performance inquiry must be whether counsel’s
assistance was reasonable considering all the circumstances.” 59 While
“[p]revailing norms of practice,” such as the American Bar Association
standards, can be used as guides to determine what is reasonable, they are
only guides and do not constitute definite checklists. 60 Judicial scrutiny of
performance has to be “highly deferential.” 61 To avoid the “distorting effects of
hindsight,” 62 conduct must be evaluated “on the facts of the particular case,
viewed as of the time of counsel’s conduct.” 63 There is “a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance.” 64 These same standards govern counsel’s duty to investigate. 65
“[C]ounsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” 66
Thus, “a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.” 67 Such reasonableness can be assessed by
taking into account the defendant’s own statements, actions, and information



       57 Id. at 687.
       58 Id. at 688.
       59 Id.
       60 Id.
       61 Id. at 689.
       62 Id.
       63 Id. at 690.
       64 Id. at 689.
       65 Id. at 690.
       66 Id. at 691.
       67 Id.

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                                      No. 12-70022
supplied by the defendant; 68 whether counsel has “reason to believe that
pursuing certain investigations would be fruitless or even harmful”; 69 resource
constraints; 70 and whether the information that might be discovered would be
of only collateral significance. 71
       To satisfy the prejudice prong, “[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.” 72 “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” 73 The
“reasonable probability” standard is less demanding than a “more likely than
not” standard, and the defendant does not need to “show that counsel’s
deficient conduct more likely than not altered the outcome in the case.” 74 “[T]he
question is whether there is a reasonable probability that, absent the errors,
the factfinder would have had a reasonable doubt respecting guilt.” 75 Similarly,
when the defendant challenges a death sentence, “the question is whether
there is a reasonable probability that, absent the errors, the sentencer—
including an appellate court, to the extent it independently reweigh[ed] the
evidence—would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” 76 We must consider the
totality of the evidence before the decision maker. 77




       68Id.
       69Id.; see also Wiggins v. Smith, 539 U.S. 510, 525 (2003); Williams, 529 U.S. at 395;
Burger v. Kemp, 483 U.S. 776, 794 (1987).
      70 See Richter, 131 S. Ct. at 789.
      71 See Rompilla v. Beard, 545 U.S. 374, 389 (2005); id. at 394 (O’Connor, J.,

concurring).
      72 Strickland, 466 U.S. at 694.
      73 Id.
      74 Id. at 693.
      75 Id. at 695.
      76 Id.
      77 Id. at 695–96.

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                                     No. 12-70022
                                            C.
      “The pivotal question is whether the state court’s application of the
Strickland standard was unreasonable.” 78 The Supreme Court has explained:

             This is different from asking whether defense
             counsel’s performance fell below Strickland’s
             standard. Were that the inquiry, the analysis would be
             no different than if, for example, this Court were
             adjudicating a Strickland claim on direct review of a
             criminal conviction in a United States district court.
             Under AEDPA, though, it is a necessary premise that
             the two questions are different. For purposes of
             § 2254(d)(1), “an unreasonable application of federal
             law is different from an incorrect application of federal
             law.” A state court must be granted a deference and
             latitude that are not in operation when the case
             involves review under the Strickland standard itself. 79

Thus, while “[s]urmounting Strickland’s high bar is never an easy task,”
“[e]stablishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult.” 80 Both the Strickland standard and
the AEDPA standard are “highly deferential” and “when the two apply in
tandem, review is doubly so.” 81
                                            D.
      Hoffman argues that the state court’s determination that there was no
deficient performance in investigating mitigating factors was based on an
unreasonable determination of facts. The Supreme Court has recognized the
circuit division over the relationship between § 2254(d)(2) and § 2254(e)(1), but




      78 Richter, 131 S. Ct. at 785.
      79 Id. (citation omitted).
      80 Id. at 788 (internal quotation marks omitted).
      81 Id. (internal quotation marks omitted).

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                                        No. 12-70022
has declined to resolve it. 82 The Supreme Court has indicated that while
§ 2254(e)(1) “pertains only to state-court determinations of factual issues,
rather than decisions,” § 2254(d)(2) “contains the unreasonable requirement
and applies to the granting of habeas relief” itself. 83
       We have held that § 2254(e)(1) “pertains only to a state court’s
determinations of particular factual issues, while § 2254(d)(2) pertains to the
state court’s decision as a whole.” 84 In other words:

              Whereas § 2254(d)(2) sets out a general standard by
              which the district court evaluates a state court’s
              specific findings of fact, § 2254(e)(1) states what an
              applicant will have to show for the district court to
              reject a state court’s determination of factual issues.
              For example, a district court may find by clear and
              convincing evidence that the state court erred with
              respect to a particular finding of fact, thus rebutting
              the presumption of correctness with respect to that
              fact. See § 2254(e)(1). It is then a separate question
              whether the state court’s determination of facts was
              unreasonable in light of the evidence presented in the
              state court proceeding. See § 2254(d)(2). Thus, it is
              possible that, while the state court erred with respect
              to one factual finding under § 2254(e)(1), its
              determination of facts resulting in its decision in the
              case was reasonable under § 2254(d)(2). 85

       Thus, for Hoffman to succeed in showing that the state court’s
determination of facts was unreasonable, he will have to do more than simply



       82 Wood, 558 U.S. at 300–01 (noting that the circuits are split on this question, but
finding it unnecessary to resolve it because the state court’s finding that trial counsel made
a strategic decision was not unreasonable even under § 2254(d)(2)).
       83 Miller-El v. Cockrell (Miller-El I), 537 U.S. 322, 341–42 (2003).
       84 Blue v. Thaler, 665 F.3d 647, 654 (5th Cir. 2011) (citing Miller-El I, 537 U.S. at 341–

42).
       85 Fields v. Thaler, 588 F.3d 270, 279 (5th Cir. 2009) (quoting Valdez v. Cockrell, 274

F.3d 941, 951 n.17 (5th Cir. 2001)).
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                                    No. 12-70022
show the erroneous nature of one individual fact-finding.
      Hoffman takes issue with four findings of fact by the state court: (i) the
state court’s finding that trial counsel “followed the American Bar Associations
guidelines”; (ii) that trial counsel interviewed Marvin Fields, Hoffman’s
brother, and Joann Norman, his aunt-by-marriage; (iii) that Dr. Elaine Salzer
“concluded that [Hoffman] suffered from no psychosis or mental deficiencies”;
and (iv) that trial counsel were “certified in accordance with the state rules to
represent persons charged with capital offenses.”
      As for the ABA Guidelines, Hoffman has failed to rebut the relevant fact-
finding by clear and convincing evidence. Hoffman points primarily to the
testimony of his expert Michele Fournet. Fournet testified to the content of the
ABA Guidelines, and indicated that in her opinion trial counsel had failed to
meet the ABA Guidelines as a whole. For example, Hoffman asserts that
Fournet’s testimony proves that trial counsel did not follow Guideline 11.8.6. 86
But when Fournet was asked whether trial counsel had followed certain other
Guidelines, she either acknowledged that trial counsel did follow those
Guidelines or that she did not know if trial counsel had fulfilled them. For
example, she acknowledged that she did not know whether trial counsel had
fulfilled Guideline 11.4.1(2) and testified that trial counsel had fulfilled
Guideline 11.4.1(2)(A).
      Hoffman also points to the fact that J. Kevin McNary, Hoffman’s second-
chair counsel, testified that he had never heard of the ABA Guidelines at the
time of the trial. But this is not proof that trial counsel’s work did not meet its
standards. For one thing, the ABA Guidelines and the state certification
standards cover much of the same ground, and both counsel were properly



      86See Am. Bar Ass’n, Guidelines for the Appointment and Performance of Counsel in
Death Penalty Cases 11.8.6 (1989).
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                                 No. 12-70022
certified. Hoffman has not here overcome the presumption of correctness by
clear and convincing evidence.
      Next, Hoffman disputes the state court’s finding that trial counsel
interviewed Marvin Fields, Hoffman’s brother, and Joann Norman, his aunt-
by-marriage. He points out that neither William Alford, Hoffman’s lead
counsel, nor McNary claimed to have spoken to them, and both Fields and
Norman testified that they were not interviewed by trial counsel. The district
court correctly recognized that the state court fact-finding was erroneous on
this point. But this is not enough to support a holding by this Court that the
state court’s decision was based on an unreasonable determination of the facts
in light of the evidence presented in the state court proceedings. The district
court was correct in finding that this individual fact was not so important as
to undermine the state court’s fact-finding on the whole.
      Hoffman also disputes the state court’s finding that Dr. Elaine Salzer
“concluded that [Hoffman] suffered from no psychosis or mental deficiencies.”
Dr. Salzer, a psychologist retained by Alford and McNary to evaluate Hoffman,
testified at the trial. Hoffman argues that Dr. Salzer only concluded that “the
available data” “fails to support a diagnosis of major psychopathology.” In other
words, Hoffman’s attack is that Dr. Salzer did not affirmatively find that
Hoffman suffered no major psychopathology, but only found that there was
insufficient evidence to make a diagnosis. But Dr. Salzer did not find that
Hoffman suffered from mental illness, and the state court was correct in so
concluding.
      Finally, Hoffman argues that the state court unreasonably relied on its
finding that trial counsel were “certified in accordance with the state rules to
represent persons charged with capital offenses.” Hoffman accepts that both
counsel were certified but argues that the inquiry ought to be whether the
lawyers adhered to the state certification requirement, not whether they were
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                                          No. 12-70022
certified in the first place. We need not disagree with this accent to conclude
that the state court did not on balance give this fact undue weight.
                                              E.
      Turning to the state court’s determination that there was no deficient
performance in investigating mitigating factors, Hoffman argues that it is
contrary to and involves an unreasonable application of clearly established
federal law. Hoffman argues that trial counsel’s performance was deficient,
and that they failed to discover all reasonably available mitigating evidence
and did not follow prevailing standards of capital defense.
      To the point, Hoffman contends that trial counsel failed in collecting his
medical history, mental and physical, and family and social history, including
physical, sexual, and emotional abuse. Hoffman also faults trial counsel’s
failure to use a mitigation specialist. He argues that counsel’s reliance on
limited information from Hoffman himself was not enough; that counsel’s
contact with lay witnesses was not sufficient; and that counsel should have
interviewed his mother and brothers, at a minimum. But evidence from the
state post-conviction proceedings shows that counsel interviewed Hoffman and
his girlfriend, conferred with several family members, including Hoffman’s
father, and interviewed other potential witnesses by telephone. While counsel
did not speak to one witness until trial, they interviewed most of the witnesses
earlier. It is true that counsel did not speak to Hoffman’s mother or brother,
but there were reasons given for the mother’s lack of involvement. Hoffman’s
contention that counsel relied too extensively on information that he provided
himself does not persuade and is in tension with the Supreme Court’s
observation that the “reasonableness of counsel’s actions may be determined
or substantially influenced by the defendant’s own statements or actions.” 87 As


      87   Strickland, 466 U.S. at 691.
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                                        No. 12-70022
our sister circuit has recognized, there is no “per se rule that trial counsel is
ineffective at mitigation unless a particular type of expert is retained.” 88
      Hoffman further contends that trial counsel only subpoenaed Hoffman’s
school records, but no other records, and that trial counsel did not collect
medical and mental health records that would have shown Hoffman’s “failure
to thrive,” his mother’s erratic and violent behavior, his paternal
grandmother’s problems, and the family history of psychosis and mental
illness. Similarly, Hoffman contends that other public records would have
shown more disturbing family history, including records of 911 calls, proof of
substandard housing, reports of the murder of 10 family members, records of
domestic violence within the family, and a police report of an armed robbery in
which Hoffman was a victim. That might well be true but trial counsel did
collect information about Hoffman’s education, sports activities, employment,
and prior criminal record. In that information, they found no indication that
Hoffman suffered from more serious problems or that fruitful paths were yet
to be followed. We cannot find error in the state court’s finding that counsel’s
failure to seek more records was not deficient.
      Hoffman also urges that the retained psychologist, Dr. Salzer, did not
compile      a    psychosocial      history,     was    not    qualified   to   administer
neuropsychological testing or conduct psychiatric testing, did not interview
any other witnesses besides Hoffman, and did not review any records besides
Hoffman’s school records. Dr. Salzer’s failure to compile a history ought not
surprise: trial counsel specifically told Dr. Salzer not to issue a written report.
According to Dr. Salzer, Hoffman had an atypical profile for such a crime, in
that there was no evidence of early childhood conduct disorder, such as
defiance, truancy, theft, or fire setting. Instead, Hoffman had passing grades


      88   Carter v. Mitchell, 443 F.3d 517, 527 (6th Cir. 2006).
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                                  No. 12-70022
in high school and leadership experience—he was the quarterback and captain
of the football team, had worked since the age of 15, and was a camp counselor
for a church summer camp. Dr. Salzer’s testing of Hoffman did not disclose any
sociopathy, aggression, or violence, and Hoffman related a positive view of his
mother and father. In short, there was no showing that Dr. Salzer ought to
have nonetheless been alerted to pursue further his mental health history or
family background.
      In addition to Dr. Salzer, two other mental health experts appointed by
the trial court also examined Hoffman prior to trial: Dr. Rafael Salcedo and Dr.
John Paul Pratt. Dr. Salcedo testified at the state post-conviction hearing that
his task “consisted of determining whether Mr. Hoffman at the time of the
examination was suffering from a psychiatric disorder” and whether he was
competent to stand trial. The results of his examination was that Hoffman was
not suffering from any diagnosable mental disorder or any major
psychopathology. Dr. Pratt also testified in state post-conviction proceedings
that Hoffman had no psychiatric symptoms before trial. Hoffman presented
three post-conviction mental health experts as evidence of ineffective
assistance of counsel. However, both Dr. Salcedo and Dr. Pratt testified at the
post-conviction hearing that they disagreed with the post-conviction experts’
analysis. For example, Dr. Salcedo disagreed with Hoffman’s post-conviction
experts and stated that there was no evidence of schizophrenia at the time of
the trial. Moreover, he disputed the availability of brain imaging at the time of
the trial—thus challenging an argument of Hoffman’s post-conviction experts.
Similarly, Dr. Pratt also disputed the availability of brain imaging that
Hoffman’s post-conviction experts        relied on. Given      these conflicting
testimonies, the state court’s decision did not violate the strictures of § 2254.
      Hoffman also contends that the state court erred in dismissing the
credibility of much of the mitigating evidence as unsubstantiated hearsay and
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                                 No. 12-70022
irrelevant. But the state court ruled that trial counsel’s performance was not
deficient, never reaching the issue of prejudice.
      Finally, Hoffman argues that lead counsel did not make a strategic
decision and admitted that his investigation was insufficient, and that trial
counsel did not affirmatively pursue a mitigation case, simply relying upon a
plea for mercy. Trial counsel’s sought-for narrative was that Hoffman was a
“good kid” who had a “bad day” and that the situation got out of hand. Hoffman
argues that this strategy backfired when the prosecutor spun it in support of
the death penalty. Lead counsel Alford testified at the post-conviction hearing
that while he would have introduced evidence of Hoffman’s mental health and
family background at trial, he doubted the effectiveness of such evidence.
Counsel seems to have made a strategic choice here, opting for two strategies
at trial: contesting the accidental nature of the murder and utilizing the “good
kid, bad day” narrative.
      By the metric of our review, we cannot here fault the state court’s
adjudication. As we have observed, the state court found that trial counsel
followed the ABA Guidelines, a state fact-finding that binds our review. This
compliance weighs in favor of counsel’s performance. Both counsel were
certified to handle capital cases and had experience in representing capital
defendants. Given the lack of notice that counsel had about Hoffman’s mental
health history and about his family background, the state court’s decision that
there was no deficient performance, and no Strickland error, was neither
contrary to nor an unreasonable application of clearly established federal law.
The district court committed no error.
                                         F.
      Hoffman contends that trial counsel were also deficient because they did
not adequately investigate and present the circumstances of the crime to
support his theory at trial. He contends that this prejudiced him during the
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                                  No. 12-70022
penalty phase of the trial because the jury had already lost faith in trial counsel
and because the jury’s understanding of the circumstances of the crime was
adversely impacted.
      Recall that, Hoffman stated that he had shot Elliot during a struggle at
the boat-launch, leaving unexplained the discovery of her body by a wooden
dock, which was approximately 150 feet downstream from the boat-launch and
accessible by land only via a long, dirt path. As a result, the State argued that
Hoffman lied in his confession. According to the State, Hoffman must have
known about the dock beforehand, had planned to kill Elliot there, and forced
her to march down there before shooting her execution-style.
      Trial counsel argued that Hoffman was truthful in his confession, and
that the shooting did happen at the boat-launch, but that the body floated
downriver to the dock. The State countered in several ways: it provided
testimony that the tide did not reach the body, it argued that the blood spatter
on the dock proved Elliot was shot there, it showed photographs of the path
and had witnesses describe it, and it took the jurors to the scene to see and
march the path themselves.
      Hoffman now contends that his trial counsel’s performance was deficient
because they should have done more. He argues that counsel made no strategic
decisions of how to best present the circumstances of the case. He points to the
fact that during their post-conviction deposition, trial counsel admitted that
they did not have “a truly coherent plan” for the guilt phase, and they were
hoping that the State would make some kind of mistake. For example, he finds
fault with the fact that trial counsel did not use an office investigator or a
forensic expert; did not interview witnesses; and did not use the report of the
first responding deputy, who described the water levels and the tides.
      Hoffman also claims that what trial counsel did do was insufficient. For
example, trial counsel tried to argue that Elliot could not have walked down
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                                 No. 12-70022
the path because her feet were not cut, but the State ridiculed this argument.
Similarly, trial counsel tried to show that the body did float down to the dock
by eliciting testimony during cross-examination, but they only got unhelpful
testimony. Finally, trial counsel tried to show that the body must have floated
down to the dock by trying to demonstrate that there was no lividity and
limited rigor mortis in the body when it was found. However, trial counsel only
used the cross-examination of the coroner to prove this, and the coroner
testified that the lividity had changed by the time of the autopsy, meaning that
he could not testify one way or another as to the lividity of the body when it
was found.
      Hoffman further contends that the jury did not review several dispositive
pieces of information. First, they did not hear that the tide data and evidence
from a post-conviction pathologist, geologist, and crime scene reconstruction
expert support Hoffman’s version of events. Second, they did not hear evidence
that the scrapes on Elliot’s knees were consistent with her body scraping the
jagged riverbed as she floated, thus countering the State’s theory that her
knees were scraped because she was kneeling during the execution-style
shooting. Third, they did not hear evidence that the bullet path did not
demonstrate an execution-style killing. Fourth, they did not hear that Hoffman
was carrying a gun with him because he lived in an area where he had lost
family members and had suffered from three violent attacks in the months
preceding the crime.
      Even on these facts, we cannot conclude that the state court was
unreasonable in rejecting this claim. Trial counsel did conduct an investigation
into the circumstances of the crime. Alford testified that he tracked the crime
scene, starting in New Orleans to the end point. McNary testified that he hired
a DNA expert to review the relevant tests. There is no checklist to assess trial


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                                    No. 12-70022
counsel’s performance and no list of necessary expert testimony. 89 Rather, the
question is whether the investigation was reasonable and whether decisions
not to investigate were reasonable. 90 Trial counsel made a reasonable decision
not to investigate further, and chose a strategy of discrediting the State’s
theory of the case.
      Hoffman has again not shown deficient performance. In deciding that no
Strickland error occurred, the state court decision was neither contrary to nor
an unreasonable application of clearly established federal law. The district
court committed no error in rejecting this claim.
                                           G.
      We thus do not need to reach the issue of prejudice.
                                          IV.
      Hoffman next brings a Brady challenge, claiming that the State
suppressed favorable evidence that would have been exculpatory. This claim
was also raised for the first time in Hoffman’s amendment to the supplemental
petition. The state court order denying relief never mentioned this claim.
Applying the Richter presumption as we must, 91 we conduct our review under
the deference ordered by § 2254.
      Under Brady v. Maryland, 92 a habeas petitioner must show three
components to prevail: “The evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching; that evidence
must have been suppressed by the State, either willfully or inadvertently; and




      89  Strickland, 466 U.S. at 688.
      90  Id. at 691.
       91 See supra Part III(A) (explaining why the Richter presumption is proper for the

claims brought in the amendment to the supplemental petition, and resultantly, why an
evidentiary hearing was not warranted for the § 2254 analysis).
       92 373 U.S. 83 (1963).

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                                           No. 12-70022
prejudiced must have ensued.” 93
         Hoffman argues that the state suppressed a coroner’s investigator’s
report, which documented a lack of lividity and limited rigor mortis in Elliot’s
body at the scene of the crime.
         According to Hoffman’s post-conviction pathologist, this lack of lividity
and limited rigor mortis indicated that the body had not been lying in the
position in which it was found; rather, it indicated that the body was moving,
which would be consistent with the theory that the body floated down the water
from the boat-launch to the dock. The district court found, and we agree, that
the suppressed evidence was neither favorable nor material. In terms of
materiality, Hoffman argues that the Brady error prejudiced his sentencing.
In this narrow and limited posture, we cannot conclude that the state court
was unreasonable in its finding of no prejudice in the penalty phase because
there were other aggravating circumstances. The district court committed no
error.
                                                  V.
         Hoffman next brings a claim of discrimination in selecting a grand jury
foreperson. As we will explain, this claim is procedurally barred and thus
presents no claimed error of federal law.
         Hoffman moved to quash the indictment returned against him in this
case by a St. Tammany Parish grand jury based on allegations of racial
discrimination in the selection of the grand jury foreperson. The trial court
denied the motion without oral or written reasons.
         According to Hoffman, he brought his claim of discrimination in the
selection of the grand jury foreperson once again in state post-conviction
proceedings and the state court denied it on the merits. The State replies that


         93   Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
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                                     No. 12-70022
the state court held the claim to be procedurally barred in the May 1st order.
The state court order does have suggestions of a merits decision, but it also
explicitly references an earlier post-conviction hearing by the state court. At
the earlier hearing, the state court found that Hoffman filed his motion to
quash and then abandoned it; that when the trial court marked the motion
satisfied it meant that Hoffman was not going to pursue the motion and
therefore the claim would not be considered in post-conviction proceedings. In
sum, the state court found that this claim of discrimination in selecting a grand
jury foreperson was abandoned by Hoffman before trial and was procedurally
barred. The State urges that this is as an independent and adequate state law
decision which presents no clear error of federal law.
      “Out of respect for finality, comity, and the orderly administration of
justice, a federal court will not entertain a procedurally defaulted
constitutional claim in a petition for habeas corpus absent a showing of cause
and prejudice to excuse the default.” 94 The narrow exception is when the
petitioner “can demonstrate that the alleged constitutional error has resulted
in the conviction of one who is actually innocent of the underlying offense or,
in the capital sentencing context, of the aggravating circumstances rendering
the inmate eligible for the death penalty.” 95 To determine whether the state
court denied relief based on an adequate and independent state procedural
rule, we examine the last reasoned state court decision to see whether it
applies a procedural bar or addresses the merits of the claim. 96 We agree with
the district court’s determination that the record shows that the state court
found the motion to be abandoned and procedurally barred; that this claim is
procedurally defaulted; and that as Hoffman does not meet the narrow


      94 Dretke v. Haley, 541 U.S. 386, 388 (2004).
      95 Id.
      96 Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

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                                     No. 12-70022
exception to such default, we cannot review its merits.
                                           VI.
      Hoffman also claims that the district court erred in denying his Batson
challenge. The State used its preemptory challenges to strike two of the three
prospective jurors from the venire who were African-American, Mr. Galatas
and Ms. Malter, and successfully challenged the other African-American
prospective juror for cause.
                                            A.
      The trial court rejected this claim. 97 On direct appeal, the Louisiana
Supreme Court affirmed. 98 The state court in turn rejected this claim on the
merits. We give the deference ordered by § 2254.
      Under Batson v. Kentucky, 99 a claim works in three steps. The defendant
first must make a prima facie showing that the prosecutor exercised a
preemptory strike on the basis of race. 100 Next, the burden shifts to the
prosecutor to provide a race-neutral explanation for the challenged strike and
rebut the prima facie case. 101 Finally, the trial court must determine whether
the defendant has carried his burden of proving purposeful discrimination. 102
      A state trial court’s finding of the absence of discriminatory intent is a
pure issue of fact and is accorded great deference; it will not be overturned
unless clearly erroneous. 103 Therefore, the federal court’s role is to “determine
whether the trial court’s determination of the prosecutor’s neutrality with
respect to race was objectively unreasonable and has been rebutted by clear



      97 Hoffman, 768 So. 2d at 556–57.
      98 Id. at 560.
      99 476 U.S. 79 (1986).
      100 Murphy v. Dretke, 416 F.3d 427, 432 (5th Cir. 2005).
      101 Id.
      102 Id.
      103 Id.

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                                       No. 12-70022
and convincing evidence to the contrary.” 104
                                              B.
      With respect to Mr. Galatas, the prosecution offered a race-neutral
explanation for the strike: Galatas was hesitant about his willingness to
impose the death penalty. The prosecution directed the trial judge to two
responses: 1) In individual voir dire, when asked if he could consider the death
penalty, Galatas hesitated and said “I think I could,” but when asked if he
could consider life, he said “I could.” 2) In full-panel voir dire, Galatas
“hesitated and gave a very weak ‘I think I could’” when asked if he could
consider death, and his response was soft such that the District Attorney had
to ask him to repeat it. When the defense disputed these reasons, the
prosecution also offered another reason: that it had struck five white jurors
who were similarly situated on the death penalty. The trial court accepted
these race-neutral reasons, including that “similar[] preemptory challenges
were exercised by the State” against white prospective jurors. On appeal, the
Louisiana Supreme Court affirmed accepting all three reasons. 105 According to
the Louisiana Supreme Court, while certain portions of the voir dire tended to
support Hoffman’s contentions, the voir dire in totality did not support his
Batson challenge as to Galatas. 106 Specifically, the Louisiana Supreme Court
found that Galatas clearly waivered when questioned about his stance on the
death penalty. 107 In contrast, the Louisiana Supreme Court found that Galatas
answered “affirmatively without equivocation” when asked about life
imprisonment. 108 Similarly, the Louisiana Supreme Court also rejected




      104 Id. (quoting Miller-El I, 537 U.S. at 341).
      105 Hoffman, 768 So. 2d at 557–59.
      106 Id.
      107 Id. at 558.
      108 Id.

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                                    No. 12-70022
Hoffman’s contention that Galatas was subject to disparate questioning. 109
Finally, the Louisiana Supreme Court found that similarly situated white
jurors had also been struck by the State. 110 The record supports these findings,
and they are not clearly erroneous. Hoffman contends that the Louisiana
Supreme Court erred in conducting its own Batson analysis, that the trial
judge relied only on the race-neutral reason that similarly situated white
jurors had been struck, and that the Louisiana Supreme Court did not defer to
this trial court finding. We are not persuaded. It is not clear from the record
that the trial judge solely relied on that one race-neutral reason, and we give
AEDPA deference to fact-findings made by a state appellate court. 111
      With respect to Ms. Malter, the prosecution offered race-neutral
explanations for the strike as well: that Malter had rated herself as a 1 out of
10 when asked by the prosecution to rate herself on the decisiveness scale, and
that Malter looked Hoffman in the eye and smiled when answering that she
could give him a fair trial. The trial court accepted this explanation noting that
“the State has presented a sufficiently racially neutral reason for use of its
preemptory challenge.” The Louisiana Supreme Court affirmed, concluding
that while Hoffman was correct that Malter actually rated herself a 5 out of
10, and not a 1 out of 10, two different prosecutors used two different
“decisiveness” scales. 112 On the one hand, District Attorney Reed defined the
scale in such a way that he wanted people in the middle of the scale. 113 On the
other hand, Assistant District Attorney Gracianette defined the scale in such
a way that he wanted people at the high end of the scale. 114 Malter was asked



      109 Id.
      110 Id. at 559.
      111 See Moody v. Quarterman, 476 F.3d 260, 268–72 (5th Cir. 2007).
      112 Hoffman, 768 So. 2d at 559–60.
      113 Id. at 559.
      114 Id.

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                                       No. 12-70022
to rate herself by Assistant District Attorney Gracianette, and not District
Attorney Reed. 115 Therefore, the Louisiana Supreme Court concluded that
striking Malter was consistent with the use of the decisiveness scale, even
though the trial court incorrectly held that Malter was 1 on the scale, and
affirmed while also pointing to the body language cited by the prosecutors. 116
The record supports these findings, and they are not clearly erroneous.
      Hoffman also claims repeatedly that the venue chosen by the State in
which to prosecute Hoffman demonstrates purposeful discrimination as to both
Galatas and Malter. We do not find this contention persuasive.
      The preemptory strikes were race-neutral, and the state court did not
violate the strictures of § 2254 in refusing to overturn the previous rulings on
this Batson challenge. For these reasons, the district court did not err in
holding that Hoffman had not provided clear and convincing evidence that the
state court’s determination was unreasonable.
                                           VII.
      Hoffman also claims that both the state court and the district court erred
in denying his claim of racial discrimination by the petit jury. Hoffman
attempted to produce evidence of the jury’s racial discrimination during the
state post-conviction proceedings. He attached an alleged affidavit from one of
the jurors, Mari Lower, which he claims demonstrates the racial bias held by
the jury.
                                            A.
      This claim was originally presented to the state court. The state court
adjudicated this claim on the merits and denied it. The deferential lens of
§ 2254 still applies. The district court did not address the § 2254 issue, but



      115   Id.
      116   Id. at 559–60.
                                            29
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                                        No. 12-70022
denied this claim on an evidentiary basis, holding that the affidavit would not
have been admissible in any case because of Federal Rule of Evidence 606(b).
                                               B.
      The district court denied this claim on Federal Rule of Evidence 606(b)
grounds. However, the first inquiry is whether the state court was
unreasonable in rejecting this claim in the post-conviction setting. Upon close
examination, we determine that it was not.
      First, the Louisiana Code of Evidence has a rule similar to Rule 606(b)
that prevents the impeachment of verdicts via juror testimony:

                Upon an inquiry into the validity of a verdict or
                indictment, a juror may not testify as to any matter or
                statement occurring during the course of the jury’s
                deliberations or to the effect of anything upon his or
                any other juror’s mind or emotions as influencing him
                to assent to or dissent from the verdict or indictment
                or concerning his mental processes in connection
                therewith, except that a juror may testify on the
                question whether any outside influence was
                improperly brought to bear upon any juror, and, in
                criminal cases only, whether extraneous prejudicial
                information was improperly brought to the jury’s
                attention. Nor may his affidavit or evidence of any
                statement by him concerning a matter about which he
                would be precluded from testifying be received for
                these purposes. 117

The state court could have easily decided that this juror affidavit fell within
this jury shield provision. Deciding so would not be contrary to or involve an
unreasonable application of federal law, because the Supreme Court has
clarified that the jury shield provision is a strong evidentiary bar. In Tanner v.




      117   La. Code Evid. Ann. art. 606(b).
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                                      No. 12-70022
United States, 118 there were allegations that many jurors had consumed
alcohol and drugs during their lunch breaks, which caused them to sleep
during the afternoon session of the trial and might have affected their
reasoning capabilities. 119 The Court recognized that an exception existed in
which juror testimony could be taken as to “extraneous influence.” 120 However,
the Court held that juror intoxication did not fit within the exception for
“outside influence[s],” but was rather an internal issue. 121 The Court held that
the district court did not err in not holding an evidentiary hearing. 122 As a
result, it would have been entirely proper for the state court to have decided
this case on these grounds.
       Hoffman contends that Louisiana’s Article 606(b) has an exception for
constitutional challenges. Indeed, the Louisiana Supreme Court has held that
Article 606(b) is flexible and can yield when there is a constitutional
challenge. 123 However, it does not follow that the state court was in error. The
evidentiary bar aside, the state court could have concluded that the evidence
did not support a finding of intentional bias or discrimination. And again this
fact-finding is due heightened deference under § 2254. In examining the
affidavit, the state court cannot be said to have been unreasonable or contrary
to federal law in deciding that no bias or discrimination was shown. The
affidavit presents juror speculation, and, more importantly, affirms that the
jury acted on the basis of the evidence and the jury instructions.
       Finally, Hoffman invokes the general juror misconduct standard. Even



       118 483 U.S. 107 (1987).
       119 Id. at 113–16.
       120 Id. at 117–21.
       121 Id. at 122–27.
       122 Id.
       123 State v. Graham, 422 So. 2d 123, 131 (La. 1982); State v. Johnson, 796 So. 2d 201,

210 (La. Ct. App. 2d Cir. 2001).
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                                     No. 12-70022
assuming the state court did not rely on the evidentiary bar, the state court
was not in error. On collateral review, “habeas petitioners are not entitled to
relief based on a constitutional error unless the error had [a] substantial and
injurious effect or influence in determining the jury’s verdict.” 124 Hoffman does
not meet this high standard because, again, the affidavit indicates that the
jury acted on the basis of the evidence and the jury instructions. As a result,
Hoffman’s claim of racial discrimination by the jury must fail. The district
court was correct in rejecting this claim.
                                          VIII.
       We AFFIRM the district court’s denial of habeas relief.




       124Oliver v. Quarterman, 541 F.3d 329, 341 (5th Cir. 2008) (internal quotation marks
omitted); see also Kotteakos v. United States, 328 U.S. 750, 776 (1946).
                                            32
