Wade v. Cain, CIVIL ACTION NO. 14-960 SECTION "N"(5)

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Writing for the CourtMICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE
PartiesRUDOLPH WADE v. N. BURL CAIN, WARDEN
Docket NumberCIVIL ACTION NO. 14-960 SECTION "N"(5)
Decision Date11 May 2015

RUDOLPH WADE
v.
N. BURL CAIN, WARDEN

CIVIL ACTION NO. 14-960 SECTION "N"(5)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

May 11, 2015


REPORT AND RECOMMENDATION

This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. §636(b)(1)(B) and (C), and as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). For the following reasons, IT IS RECOMMENDED that the petition for habeas corpus relief be DISMISSED WITH PREJUDICE.1

I. Procedural history

Petitioner, Rudolph Wade, is a state prisoner incarcerated in the Louisiana State

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Penitentiary, in Angola, Louisiana. On November 30, 2006, he was indicted by an Orleans Parish Grand Jury on one count of aggravated rape.2 On September 12, 2007, the matter proceeded to trial by jury where the following facts were adduced, as set forth by the Louisiana Fourth Circuit Court of Appeal on direct appeal:

DR. EVAN FUSCO:
Direct examination by the state:

Both the state and the defense stipulated as to Dr. Fusco's expertise in emergency medicine. On February 10, 1996, Dr. Fusco examined the victim, C.L., in the emergency room of Charity Hospital in New Orleans. The victim told Dr. Fusco that she was abducted in her car by an unknown black male and forced to drive to Algiers at gunpoint. The victim informed Dr. Fusco that she was "pistol whipped" and was struck on the chest, arms, and neck. She also complained of abdominal pain and vaginal soreness. He observed that she had bruising of the peri-urethral area and the perineum, the vaginal area. These findings were consistent with forced penetration. He also observed a bruise above her left forehead, bruising to her upper chest and bruising and grip marks on both of her arms around the bicep area. There were bruises on the front of her left thigh and on the front of her right lower leg. There were finger marks on her neck, which Dr. Fusco described as typical of strangulation. There were also finger marks around the upper area of both arms. He also noted bruising between the urethra and the introitus of the vagina. The victim admitted that she had been drinking beer earlier in the day. Dr. Fusco did not detect any odor or evidence of alcohol use during the examination.

Cross-examination by the defense:

Dr. Fusco performed blood tests on the victim to check for sexually transmitted diseases. He did not recall if any tests were conducted to check for blood alcohol or drug levels. Dr. Fusco stated that the term "pistol whipped" in his report was a direct quote from the victim. No stitches or sutures were required. Dr. Fusco could not remember if the victim was given narcotic pain killers.

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Re-direct examination by the state:

Dr. Fusco testified that if he had seen a need to screen for drugs that he would have done so.

CO. L. [brother of the victim]:
Direct examination by the state:

On February 10, 1996, Co. L., brother of the victim, arrived at Charity Hospital at around 2:00 a.m. He observed that his sister was crying, angry and could not believe what had happened to her. He observed bruises on her neck, shoulder area and head. Her eyes were swollen and remained swollen for several days. Ten years after the rape, Mr. L. was contacted by Detective Joseph Goines who informed him that he was investigating the case and needed to contact his sister. Mr. L. contacted his sister and gave her Goines's phone number.3

JENNIFER MCDONALD:
Direct examination by the state:

Jennifer McDonald, a New Orleans Police Department 911 Communication Center Supervisor, read the transcript of call number 15650. She described the call as a report of a rape; the call was generated at 12:31 a.m. on February 10, 1996 from 2401 General DeGaulle Boulevard. The caller stated that she had been abducted from a Time Saver convenience store at Aimes and Barataria Boulevards in Jefferson Parish, and she described her assailant as a black male wearing a long sleeve shirt, black pants, black cap and standing approximately six feet tall, wearing round frame glasses and carrying a handgun. Police units were dispatched to answer the call.4

OFFICER CARL PALMER:
Direct examination by the state:

Officer Carl Palmer was assigned to the New Orleans Police Crime Lab on

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February 10, 1996. He completed the rape investigation for the victim, C.L. He photographed the scene of the rape, the area of 2601 General DeGaulle Boulevard, and the exterior and interior of the victim's 1984 white Oldsmobile Cutlass Ciera. The interior photograph showed a broken rearview mirror on the front floor. Officer Palmer took full body photographs of the victim and dusted the right front door and the rearview mirror for fingerprints; no fingerprints were found.

Cross-examination by the defense:

Officer Palmer stated that he received the dispatch at 1:10 a.m. and arrived on the scene at 1:31 a.m. He did not know how the rearview mirror came to lie on the floor of the car.

SHIRLEY CLAYTON:
Direct examination by the state:

Shirley Clayton, Police Technical Specialist for the New Orleans Police Department photo lab, determined that all of the 1996 crime lab photographs as well as the film canisters, taken in connection with this case, were destroyed in Hurricane Katrina.

Cross-examination by the defense:

Ms. Clayton testified that the photo lab had over four feet of flood water inside and that all 1996 records were destroyed in the flood.

JENNIFER SCHRODER:
Direct examination by the state:

Both the state and the defense stipulated that Jennifer Schroder, criminalist with the New Orleans Police Department Crime Lab, was an expert in molecular biology. Her job responsibilities included processing DNA evidence and administering the local DNA data base. She stated that when DNA material is uploaded into a state or federal data base and a match is found for a New Orleans case, a notification is sent to the administrator for the New Orleans data base. She received such a notice in relation to the instant case. She generated a letter to the investigators assigned to the case informing them that a match was found and the steps necessary to confirm the match. The match notification

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identified the individual as defendant, Rudolph Wade. The investigators were instructed to obtain another DNA sample from defendant for confirmation testing. Subsequently, the investigators provided her with a Buccal swab from defendant's inner cheek. All thirteen genetic markers in defendant's sample matched the genetic markers in the original sample.5

ANNE MONTGOMERY:
Direct examination by the state:

Both the state and the defense stipulated that Ms. Montgomery, director for the DNA Lab in Jefferson Parish and technical leader for the New Orleans DNA lab, was an expert in molecular biology and DNA forensic analysis. Defense counsel also stipulated that the DNA material from the crime scene was a match with defendant.

Ms. Montgomery performed a DNA profile from a reference Buccal swab taken from defendant's inner cheek. Defendant's DNA was then compared to the DNA of the sperm recovered from the vaginal swab from the victim on the night of the rape. The test results showed that defendant could not be eliminated as the sperm donor. Ms. Montgomery also compared the DNA profile of defendant's fraternal twin brother, Adolph Wade. The test results showed that Adolph Wade was one hundred percent excluded as a potential sperm donor in this case.6

DETECTIVE DENNIS DEJEAN:
Direct examination by the state:

Detective Dejean was assigned to the New Orleans Sex Crime Unit in 1996. On February 10, 1996 he was assigned to investigate a rape in the area of 2401 General DeGaulle Boulevard. The victim was at a gas station across the street from the crime scene. Upon arrival at the gas station Detective Dejean identified the victim as C.L. He described her appearance as disheveled: her hair was messed up, she was sweating, she had a number of scratches and bruises on her neck and hands, and she was very upset, crying and trembling. The victim

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escorted Dejean across the street to her car where the rape occurred on the front seat. The crime lab processed the car for evidence. After a brief initial conversation with the victim, Detective Dejean had her transported to the hospital, where she would undergo a medical examination and sexual assault procedure examination and could give a more in-depth statement. Later, when Detective Dejean interviewed the victim at the hospital she had calmed down, was coherent, and showed no signs of drug or alcohol use. She was unable to identify her assailant. Detective Dejean was not able to develop a suspect at that time.

Cross-examination by the defense:

Detective Dejean stated that he had read and reviewed his 1996 police report prior to testifying. The victim admitted that she had been drinking beer earlier that day. Dejean did not detect any indication of narcotics use and was unaware if any test was performed to detect the presence of cocaine.

DETECTIVE JOSEPH GOINES:
Direct examination by the state:

In 2006 Detective Joseph Goines of the New Orleans Police Department Sex Crimes Unit was notified by the DNA lab that a possible suspect in the victim's rape case had been located. Detective
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