Brown v. Cain

• Decision Date: 21 January 1997
• Docket Number: No. 95-30870,95-30870
• Citation: 104 F.3d 744
• Parties: John Ashley BROWN, Jr., Petitioner-Appellant, v. Burl CAIN, Warden, Louisiana State Penitentiary, Angola, Louisiana, Respondent-Appellee, and Richard Ieyoub, Attorney General for the State of Louisiana, Additional Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 744

104 F.3d 744

John Ashley BROWN, Jr., Petitioner-Appellant, v. Burl CAIN, Warden, Louisiana State Penitentiary, Angola Louisiana, Respondent-Appellee and Richard Ieyoub, Attorney General for the State of Louisiana Additional Respondent.

No. 95-30870.

United States Court of Appeals Fifth Circuit.

Jan. 21, 1997.

Judy Perry Martinez, Denise C. Puente, Simon, Peragine, Smith & Redfearn, New Orleans, LA, Denise R. LeBoeuf, Loyola Death Penalty Resource Center, New Orleans, LA, for petitioner-appellant.

Jack C. Peebles, Metairie, LA, for respondent-appellee.

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

Before JOLLY, JONES and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

John Ashley Brown, who is sentenced by the state of Louisiana to die, appeals the district court's dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Brown insists that his conviction and death sentence are rendered unconstitutional by a list of alleged errors, including prosecutorial misconduct, ineffective assistance of counsel, and various defects in the jury instructions. Brown's most serious contention is that the jury's instruction on the "reasonable doubt" standard contained constitutional error. After a careful review of our precedent on this subject, we conclude that the district court did not err in rejecting this allegation and the other arguments that Brown makes.

I

On September 7, 1984, Mr. and Mrs. Omer Laughlin were returning to their parked car after dinner at a New Orleans restaurant. Brown exited a nearby vehicle and confronted the Laughlins. Brown pushed the couple against their car and demanded money from Mr. Laughlin. As Mr. Laughlin handed over his wallet, Mrs. Laughlin screamed and ran back toward the restaurant. When Mrs. Laughlin returned shortly thereafter, Mr. Laughlin was dead. He had been stabbed 13 times.

Mrs. Laughlin gave the police a description of Brown, and also of the vehicle he had been sitting in before the attack. Mrs. Laughlin told police that a woman with dark hair had been driving the car. A short time later, an off-duty police officer, who had heard the crime reported on his police radio, noticed the car as it pulled into a service station. After watching Brown washing his hands at a water hose, the officer apprehended Brown and his companion, Anna Hardeman. The officer observed blood, scratches and other marks on Brown's forearms, and blood on Brown's feet. A New Orleans Shopper's card belonging to Omer Laughlin was visible on the floor of the car. Mr. Laughlin's wallet and the murder weapon, a Bowie knife, were later found in the car. Mrs. Laughlin identified Brown from line-up photographs as the man who had assaulted her husband.

II

On September 20, Brown and Hardeman were indicted for first degree murder. Hardeman entered into an agreement to plead guilty to a lesser charge of accessory after the fact. In April 1985, Hardeman's counsel filed a motion concerning Hardeman's right to a speedy trial, in an apparent attempt to get Hardeman released pending Brown's trial. At a hearing on the motion, the prosecutor stated that Hardeman was "no longer cooperating with the state's prosecution" and that any prior plea bargaining agreement was "no longer in effect." Brown's trial began before a jury on June 13. On the first day, the charges against Hardeman were severed, and the prosecutor stated that Hardeman would be tried separately.

During the guilt phase of the trial, Brown did not call any witnesses to testify on his behalf. He conceded that he had committed the acts in question, but argued that he lacked the requisite intent to be convicted of first degree murder, claiming intoxication. The jury found Brown guilty of the premeditated murder of Omer Laughlin. A penalty phase to determine Brown's sentence immediately followed. During the penalty phase, Brown argued that he should not be sentenced to death because his actions were partly attributable to his intoxication on the night he attacked Laughlin, his longstanding drug addiction, and his generally underprivileged childhood.

Brown called several witnesses during the penalty phase. Brown's mother testified to Brown's impoverished childhood and his early drug problems. Brown's sister similarly testified to Brown's childhood problems. Brown's sister also stated that Brown was a heavy drug user in 1984, that he took drugs intravenously, and that he behaved strangely when he was using drugs. In 1984, the sister indicated, Brown was regularly using Mandex (a bootleg quaalude), cocaine, and heroin. Brown presented expert testimony concerning the effects of his drug use.

Brown also called Hardeman to testify on his behalf during the penalty hearing. Hardeman took the stand, but after a few preliminary questions, the prosecutor interrupted the examination and requested that the court determine whether Hardeman had consulted with her attorney concerning her Fifth Amendment rights. At this point, Hardeman had not yet pled guilty, although she later did so under a plea bargaining agreement. Hardeman's testimony was suspended, and the court summoned Hardeman's attorney, who advised her to exercise her right against self-incrimination. When Hardeman resumed the stand, the court permitted her to invoke the Fifth Amendment over Brown's objection.

The prosecution contested Brown's claim that he was addicted to drugs. During cross-examination, the prosecutor elicited a concession from Brown's expert that Brown showed no physical signs of intravenous drug use. The prosecution called its own psychiatrist who testified that Brown did not have track marks, a scarring caused by intravenous drug use, and that Brown's prison records following his arrest did not reveal signs of physical withdrawal.

After deliberating, the jury unanimously decided that Brown should be sentenced to death. The jury found two statutory aggravating factors: (1) the murder was committed during the perpetration of an armed robbery, and (2) the offense was committed in an especially heinous, atrocious, and cruel manner.

Brown appealed his conviction and sentence to the Louisiana Supreme Court, which affirmed. State v. Brown, 514 So.2d 99 (La.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 216 (1988). Then, in 1988, Brown began post-conviction proceedings in state court, where he was represented by a new team of appointed counsel. Evidentiary hearings in Brown's state habeas proceedings were held in March and May of 1993. The state trial court denied the application for post-conviction relief in a written order entered August 9, 1993. State ex rel Brown v. Whitley, No. 303-750 (La.Dist.Ct., Orleans Parish, August 9, 1993) (unpublished). The Louisiana Supreme Court denied Brown's petitions for supervisory and remedial writs in April 1995, and denied reconsideration in June 1995. Brown was subsequently scheduled for execution on July 28, 1995.

After an initial dismissal for incomplete exhaustion and an unsuccessful return to state court, Brown refiled his federal application for habeas relief and was granted a stay of execution. The district court reviewed Brown's twenty-two claims for relief in an exhaustive opinion, concluding that Brown's application failed to demonstrate any constitutional defect in his conviction or sentence. Brown v. Cain, 1995 WL 495890 (E.D.La. August 18, 1995). The district court later entered a stay of execution pending appeal and issued a certificate of probable cause. Brown v. Cain, 1995 WL 527632 (E.D.La. September 1, 1995).

III

Brown raises three contentions that merit analysis our consideration. First, Brown argues that certain acts of the prosecution amount to prosecutorial misconduct that materially affected the outcome of the trial. Second, Brown insists that he was denied effective assistance of counsel. Third, Brown argues that the jury instruction on reasonable doubt was constitutionally defective. ¹

Before addressing Brown's arguments, we must examine the requirements imposed upon us by the recently enacted the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), which was signed into law by the President on April 24, 1996. The AEDPA substantially amends the federal habeas corpus provisions of Title 28. Two changes, in particular, are important to Brown's appeal: the requirement that a habeas petitioner obtain a "certificate of appealability" ("COA"), and the deferential standard of review imposed upon the federal courts when reviewing claims adjudicated on the merits in a state proceeding.

In Drinkard v. Johnson, 97 F.3d 751 (5th Cir.1996), we held that the habeas amendments enacted by the AEDPA apply to cases pending before us on April 24, 1996, when the President signed the AEDPA into law. Specifically, we held that a habeas appellant's application for a "certificate of probable cause" ("CPC"), the procedural requirement before the AEDPA was enacted, appropriately could be treated as an application for a COA, without violating the dictates of Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Drinkard, 97 F.3d at 756.

In Landgraf, the Supreme Court indicated that "changes in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity" because procedural rules regulate "secondary" rather than "primary" conduct. 511 U.S. at 275, 114 S.Ct. at 1502. The Court noted, however, that "the mere fact that a new rule is procedural does not mean that it applies in every pending case." 511 U.S. at 275 n. 29, 114 S.Ct. at 1502, n. 29. The Court observed that with "procedural" rules, "the applicability of such provisions ordinarily depends upon the posture of the particular case." Id. The reviewing court must consider the concerns central to retroactivity analysis: whether the new rule "attaches...