609 F.3d 774 (5th Cir. 2010), 08-30958, Woodfox v. Cain

Docket Nº:08-30958.
Citation:609 F.3d 774
Opinion Judge:KING, Circuit Judge:
Party Name:Albert WOODFOX, Petitioner-Appellee, v. Burl CAIN, Warden, Louisiana State Penitentiary, Respondent-Appellant.
Attorney:Christopher Albert Aberle, Mandeville, LA, George H. Kendall, Samuel Spital, Squire, Sanders & Dempsey, L.L.P., New York City, Nicholas Joseph Trenticosta (argued), New Orleans, LA, for Petitioner-Appellee. James David Caldwell, Dana J. Cummings, Baton Rouge, LA, Stuart Kyle Cuncan, Asst. Atty. G...
Judge Panel:Before KING, STEWART and SOUTHWICK, Circuit Judges. LESLIE H. SOUTHWICK, Circuit Judge, dissenting:
Case Date:June 21, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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609 F.3d 774 (5th Cir. 2010)

Albert WOODFOX, Petitioner-Appellee,


Burl CAIN, Warden, Louisiana State Penitentiary, Respondent-Appellant.

No. 08-30958.

United States Court of Appeals, Fifth Circuit.

June 21, 2010

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Christopher Albert Aberle, Mandeville, LA, George H. Kendall, Samuel Spital, Squire, Sanders & Dempsey, L.L.P., New York City, Nicholas Joseph Trenticosta (argued), New Orleans, LA, for Petitioner-Appellee.

James David Caldwell, Dana J. Cummings, Baton Rouge, LA, Stuart Kyle Cuncan, Asst. Atty. Gen (argued), La. Dept. of Justice, Baton Rouge, LA, Mary Ellen Hunley, Asst. Atty. Gen., La. Dept. of Justice, Crim. Div., Baton Rouge, LA, for Respondent-Appellant.

Appeal from the United States District Court for the Middle District of Louisiana.

Before KING, STEWART and SOUTHWICK, Circuit Judges.

KING, Circuit Judge:

In this appeal from the district court's grant of a writ of habeas corpus, we are confronted by a crime that is now nearly forty years old and the problems that arise when a defendant is re-tried decades after an initial conviction. Petitioner-Appellee Albert Woodfox, an inmate in the Louisiana State Penitentiary at Angola, Louisiana, was originally convicted in 1973 for the murder of prison guard Brent Miller. His conviction was eventually overturned in state court post-conviction proceedings, but the State re-indicted him and proceeded to a second trial in 1998. By that time many of the witnesses had died and physical evidence had been lost. The State and the defense were both forced to present the prior recorded testimony of witnesses from the first trial.

Not surprisingly, the jury was presented with two portrayals of Woodfox, one as a hardened offender who advocated racial violence and force against the prison officials, and a second as a protector of weaker inmates and an advocate for prison reform who was targeted and framed for the crime due to his political activism. Although presented both with witnesses who swore that Woodfox was the killer and other witnesses who swore he had an alibi, the jury resolved the matter in favor of the State and again convicted Woodfox of murder. That conviction is the subject of the instant federal habeas proceeding.

The district court held that Woodfox's 1998 trial counsel rendered ineffective assistance in several respects. It held that counsel should have objected on confrontation grounds to the reading of the 1973 testimony from inmate Hezekiah Brown, who provided an eyewitness account incriminating Woodfox and who had died before the 1998 trial. The court believed the prior testimony was inadmissible because prior to the first trial, the State had suppressed information showing that Brown may have been lying about promises

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from prison officials in return for his testimony. The district court also faulted counsel for failing adequately to investigate or to object to other physical and testimonial evidence. The State of Louisiana, acting through the Respondent-Appellant Warden Burl Cain, appeals.

We conclude that Woodfox's confrontation-based argument about Brown is precluded from federal review because it was not adequately exhausted in state court, and that it also fails on the merits. As we explain below, we conclude that the deferential standard of review applied to state habeas decisions under the Antiterrorism and Effective Death Penalty Act mandates that we REVERSE the district court's judgment.

I. Factual and Procedural Background

In 1972, the Louisiana State Penitentiary was a segregated institution prone to violence and harsh living conditions. The record suggests that stabbings occurred among the inmate population on a regular basis. Homosexual rape was prevalent, as was the presence of so-called " gal-boys," inmates who acted like women in homosexual relationships and who were traded as slaves by stronger, predator inmates. The social and political unrest of the early 1970s that was common in the entire country added to the tension of an already hostile prison environment. The relevance of all these facts to this case will become clear later in this opinion. Albert Woodfox was an inmate at the penitentiary serving a fifty-year sentence for armed robbery.

The prison's medium security area included four dormitory groups (each with four dormitories), known as Pine, Hickory, Walnut, and Oak, that housed inmates in a barracks-like setting. Woodfox lived in the Hickory 4 dorm. Brent Miller, a young, well-liked prison guard, was one of two correctional officers assigned to the four Pine dormitories. The prison at that time was understaffed with correctional officers, and inmates often conducted themselves with a minimal number of guards supervising them. For example, prisoners in medium security were allowed a certain amount of autonomy in deciding whether or not to remain in their dorms or to go to breakfast in the dining hall.

On April 17, 1972, Miller stayed behind in the dorm area while fellow correctional officer Paul Hunt escorted the inmates from Pine down the " walk" to the dining hall for breakfast. The inmates were initially unable to gain entrance to the dining hall because the inmate servers refused to serve breakfast in protest of the hours they were required to work. The disturbance was known as a " buck." The prisoners were held out of breakfast while the warden attempted to resolve the buck. Some inmates returned to their dormitories, others remained outside. After the grievance was resolved, a second call to chow was made.

Sometime between 7:30 a.m. and 8:00 a.m., while all this was going on, Miller entered the Pine 1 dormitory where inmate Hezekiah Brown kept a small coffee pot. Brown typically remained in the dorm for breakfast and often shared coffee with the guards. Upon returning from breakfast a short time later, Correctional Officer Hunt found Miller's body lying in a pool of blood in the anteroom of the dorm. Miller had been stabbed 32 times.

The prison immediately went into lockdown. Correctional officers began searching the dormitory area and found a homemade prison knife covered with wet blood hidden in a vent underneath Pine 1. Officers called in the West Feliciana Parish Sheriff's Department and the state police. A physical examination of the crime scene yielded four finger prints that were found by dusting the dorm wall by the water

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cooler near Miller's body. An apparent bloody finger print was also visible on the door frame. Prison officials coordinated an investigation with the Sheriff's Department, which commenced questioning of several hundred inmates who were in the prison yard or near the scene at the time of the murder.

Sheriff Bill Daniel and Deputy Thomas Guerin conducted much of the questioning of individual prisoners in the prison's clothing room as the inmates waited for hours in line outside. They eventually questioned Woodfox, who denied any knowledge of the murder and claimed he was eating breakfast at the time. Sheriff Daniel testified that he seized Woodfox's clothing-including a green jacket, blue pants, and brown shoes-because of small, suspicious stains that might have been blood. Daniel bagged these items for evidence and sent them to the state police crime lab for further examination. A state criminologist testified that a small stain on the jacket was found to be human blood but there was an insufficient amount to determine the blood type. The small stains on the pants and shoe were also determined to be blood, but the quantity was so small that the State's expert could not determine if it was human or animal blood. This was significant because Woodfox worked in the kitchen, where he could have come into contact with animal blood. Further, neither the fingerprints on the wall nor the bloody print found at the scene was matched to Woodfox or any other person at the prison.

The State's case against Woodfox was built largely on eyewitness testimony. The most damaging information came from Hezekiah Brown, who testified at Woodfox's first trial in 1973. Because Brown was deceased by the time of the second trial in 1998, his prior testimony was read into the record. Brown was a 66-year-old inmate who had previously been on death row but had his sentence commuted to life prior to the events described herein. He initially told investigators on April 17, 1972, that he knew nothing about the murder and claimed to have an alibi placing him in the blood plasma unit at the time of the crime. Brown was questioned a second time on April 19, however, and gave a very different story.

Brown testified at the 1973 trial that he was in the Pine 1 dorm when Miller came in to have coffee and sat down on Brown's bed, which was the closest bunk to the door. As Brown was plugging in the coffee pot, he heard scuffling behind him. He looked up and saw four inmates had entered: Woodfox, Herman Wallace, Gilbert Montegut, and Chester Jackson. Brown testified that the men held handkerchiefs over their faces but that he was able to recognize them. Woodfox suffers from a skin condition that causes blotching and rendered him identifiable.

According to Brown, Woodfox grabbed Miller from behind, lifted him up off the bed, and stabbed him in the back with a knife. He testified that the other inmates also grabbed Miller and began " jugging on him." As they repeatedly stabbed Miller, the inmates pulled him into the small lobby area at the front of the dorm where they left him as...

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