Duncan v. Cain

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 00-31375

CALVIN DUNCAN,

Petitioner-Appellant,

VERSUS

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

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

January 18, 2002

Before DUHÉ and BENAVIDES, Circuit Judges, and RESTANI1, District
Judge.

DUHÉ, Circuit Judge.

Petitioner-Appellant Calvin Duncan seeks habeas relief

following post-conviction relief proceedings in state court

pertaining to his first-degree murder conviction and life sentence.

First, Duncan contends that the state court improperly rejected his

Brady claim2 based on immateriality of exculpatory and impeachment

evidence withheld from him. Additionally, Duncan asserts error in

1
Judge, U.S. Court of International Trade, sitting by designation.
2
Brady v. Maryland, 373 U.S. 83 (1963), requires the state to disclose
material evidence favorable to the accused. See Little v. Johnson, 162 F.3d 855,
861 (5th Cir. 1998), cert. denied, 562 U.S. 1118 (1999).
the district court’s and the state court’s handling of a

reasonable-doubt jury instruction and related claim that the

instruction was constitutionally infirm under Cage v. Louisiana,

498 U.S. 39 (1990). For the following reasons, we affirm.

1. Brady Documents Found Immaterial.

Duncan contends that evidence withheld from him is exculpatory

Brady information, because it is contrary to the trial testimony of

a key eye witness, Kristie Emberling, and could have undermined an

officer’s testimony regarding Emberling’s selection of Duncan from

a photo line-up. Specifically, Duncan contrasts Emberling’s trial

testimony that the shooter was wearing a leather jacket and a knit

hat, with police reports from the night of the crime indicating

that Emberling and other unnamed eye witnesses described a white or

light shirt and leather sun visor. Duncan claims the reports

conflicted enough with Emberling’s trial testimony to have been

useful as impeachment, had they been duly disclosed under Brady.

The state court denied Brady relief on the ground that the

documents were immaterial. State v. Duncan, 648 So.2d 1090, 1097-

1100 (La. App. 4th Cir. 1994), writ denied, 657 So.2d 1028 (La.

1995), cert. denied, 516 U.S. 1148 (1996). Regarding the omitted

reports found to be immaterial, the district court quoted the state

appellate court’s finding that Emberling’s transcribed statement,

rather than the police reports, was the best evidence of what

Emberling actually said. An officer’s notes during an interview

2
are not documents to which a defendant is entitled under the Jencks

Act, 18 U.S.C. § 3500, if never adopted by the witness. Here, the

officer’s interpretation was not verbatim and not adopted by the

witness, so could not be useful to impeach what Emberling said. As

the state court found, the transcribed statement (mentioning a knit

cap and leather jacket) and trial testimony differ only slightly.

Similarly, her description of the murderer in her grand jury

testimony was essentially the same as that given at trial. The

district court found that the state court’s holding did not involve

an unreasonable application of clearly established federal law, as

determined by the Supreme Court.

We review the district court’s analysis of the Brady issues de

novo. Felder v. Johnson, 180 F.3d 206, 212 (5th Cir.), cert.

denied, 528 U.S. 1067 (1999). That is, we defer to the state

court’s adjudication unless it 1) was contrary to or involved an

unreasonable application of clearly established federal law as

determined by the Supreme Court, or 2) constituted unreasonable

fact-finding based on the evidence. 28 U.S.C. § 2254(d)(1) & (2).

We agree with the district court and do not find that the

state court unreasonably applied the materiality standard.

Evidence is “material” if there is a reasonable probability that,

had the evidence been disclosed, the result at the trial would have

been different; a reasonable probability is one that undermines

confidence in the outcome of the trial. United States v. Bagley,

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473 U.S. 667, 682, 685 (1985); Spence v. Johnson, 80 F.3d 989, 998

(5th Cir.), cert. denied, 519 U.S. 1012 (1996). Duncan has not

convinced us that this undisclosed evidence would create a

reasonable probability of a different result at trial.

Duncan alleges a second Brady violation in that information

about Emberling’s identification of him from a photo line-up was

exculpatory and wrongfully withheld from the defense. Her

undisclosed grand jury testimony and an investigative report

revealed that Emberling expressed some reservations and trepidation

in selecting Duncan from a photo line-up seven months after the

crime, though Emberling’s and a detective’s trial testimony did not

reflect any hesitation on her part. Duncan also complains of not

knowing that a full week passed after her viewing the photos before

she phoned the detective to say she was sure of her identification.

The police report reflects, however, that a week did not

elapse; rather, Emberling told detectives thirty minutes later on

the very same day she viewed the photos. According to the report,

after first positively identifying Duncan, she then admitted being

“not sure and . . . very scared”; the very same morning she phoned

to state that she was positive and wavered because Duncan knew

where she lived and she was afraid that he might attempt to kill

her. Testifying before the grand jury, however, she did not

remember when she called back, and surmised that it “could have

been a week or so after.” Additionally, before the grand jury, she

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did not mention fear that Duncan would kill her as a reason for her

hesitancy.

We disagree with Duncan’s contention that the foregoing would

have weakened Emberling’s identification at trial or shown

confusion or ingredients of suggestiveness. She did identify him

while looking at the photo. We find no reasonable probability that

a jury would have concluded that Emberling’s equivocation and the

circumstances resolving her tentativeness demonstrated uncertainty

rather than fear. Omitted evidence is not material if there is

only a reasonable possibility that either a total, or just a

substantial, discount of testimony might have produced a different

result. Felder, 180 F.3d at 213.

Finally, the materiality of suppressed evidence should be

considered collectively, not item by item. Kyles v. Whitley, 514

U.S. 419, 436-37 (1995). Duncan argues that the court erred in

considering the materiality of each piece of information in

isolation rather than collectively. The district court did make

clear that its holding pertinent to the Brady material was the same

whether the evidence was considered “individually or collectively.”

Undisclosed information must be evaluated in the context of

the entire record; if no reasonable doubt lingers irrespective of

the undisclosed matters, then the matters are not material to

guilt. United State v. Davis, 752 F.2d 963, 975-76 (5th Cir. 1985).

Emberling had a very close encounter with Duncan, indeed had a

5
conversation with him before the crime. She was only eight to ten

feet away when she witnessed the shooting of her fiancé in the

head. She identified Duncan twice from a photograph, and some

months later she again identified him from a physical line-up.

Considering the undisclosed evidence against the state’s total

case, we hold that Duncan has failed to show a reasonable

probability of a different outcome if he had had full disclosure of

the alleged Brady information.

2. Procedural Bar of Cage Claim.

The state court refused to review Duncan’s contention that a

reasonable-doubt jury instruction was unconstitutional under Cage

because the record did not reflect that Duncan made a

contemporaneous objection to the charge. Duncan, 648 So.2d at

1100; see La. Code Crim. Proc. Ann. art. 801 (West 1998). The

district court deferred to the state court’s finding that no

objection was made to the jury instruction. The district court

concluded accordingly that the Cage claim was subject to an

independent and adequate state procedural bar.3

A. Finding of No Contemporaneous Objection.

Duncan complains, first, that the state court’s ruling was not

3
A federal court will not review a question of federal law decided by a
state court if the decision rests on a state procedural default that is both
adequate to support the judgment and independent of the merits of the federal
claim, absent a showing of cause and prejudice for the default, or a showing that
the failure to review the federal claim would result in a complete miscarriage
of justice. Coleman v. Thompson, 501 U.S. 722 (1991); Muhleisen v. Ieyoub, 168
F.3d 840, 843 (5th Cir.), cert. denied, 528 U.S. 828 (1999).

6
a finding of fact, and the district court erred in deferring to it

as such. We are unconvinced. On post-conviction relief, the state

court did hold a hearing4 to determine the very question whether an

objection was made when there was none of record.

The trial court found that the record showed no objection was

lodged and rejected the argument after the hearing. The appellate

court concluded that counsel did not object during the jury

instruction period and held the matter was procedurally barred.

Even if the court did not in its ruling specifically mention the

attempted filing of an objection that was not reflected in the

record, Duncan had his evidentiary hearing on the very point. The

court simply rejected his position as a question of fact. A

federal court defers to such a finding unless rebutted by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1).

B. Adequacy of Procedural Bar.

The state court barred Duncan’s allegation that the

reasonable-doubt jury charge was unconstitutional under Cage, based

on his violation of Louisiana’s contemporaneous-objection rule. A

state procedural rule enjoys a presumption of adequacy when the

state court expressly relies on it in deciding not to review a

claim for collateral relief. Glover v. Cain, 128 F.3d 900, 902 (5th

4
Duncan presented the trial court with evidence that a) a written objection
to the offending jury instruction was made but not file-stamped, b) his
attorney’s office filed such motions in every felony case, c) he had filed one
in Duncan’s case, too, and d) the clerk of court did not routinely file-stamp
such documents.

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Cir. 1997), cert. denied, 523 U.S. 1125 (1998). It is well-settled

that the contemporaneous-objection rule is an independent and

adequate state procedural ground. See, e.g., Wainwright v. Sykes,

433 U.S. 72, 87-88 (1977). So long as the state court relied on

the procedural default in dismissing the claim, as it did here, the

claim is immune from federal review. Id.

Duncan contends that his Cage claim is excepted from the

contemporaneous-objection rule, as it involves a jury instruction

“of such importance and significance as to violate fundamental

requirements of due process.” See State v. Williamson, 389 So.2d

1328, 1331 (La. 1980). Because a Louisiana appellate court has

recently applied this exception from the requirement of a

contemporaneous objection to a Cage-deficient jury charge,5 Duncan

argues, barring his Cage claim based on lack of contemporaneous

objection is not an independent and adequate state law ground.

Williamson involved a jury charge pertaining to elements of

felony-murder––“the very definition of the crime.” 389 So.2d at

1331. An element of the offense is “important and significant”

enough to warrant correction as an error of constitutional

magnitude, without a contemporaneous objection. Duncan contends

that his Cage claim involves such a basic constitutional trial

right as was involved in Williamson.

To be an “adequate” state law ground, the state rule must be

5
State v. Lowery, 781 So.2d 713, 729-31 (La. App. 2nd Cir. 2001).

8
“consistently or regularly applied;” Lott v. Hargett, 80 F.3d 161,

165 (5th Cir. 1996). The procedural bar is adequate if courts have

applied it in the vast majority of similar claims. Id.; Glover v.

Cain, 128 F.3d at 902.

In Muhleisen v. Ieyoub, 168 F.3d 840 (5th Cir.), cert. denied,

528 U.S. 828 (1999), a panel of this Court declared, “We believe

Louisiana’s use of the contemporaneous objection rule, as applied

specifically to Cage claims, is constitutionally adequate.” 168

F.3d at 843. In light of the Louisiana Supreme Court’s 1996

Quatrevignt6 and Taylor7 decisions, the Muhleisen panel nevertheless

addressed the Cage claim “out of caution,” despite the lack of

objection, and Duncan urges us to do the same. The Muhleisen panel

further declared, however, “Given Quatrevingt’s proximity to the

Louisiana Supreme Court’s decision in Taylor, we doubt Quatrevingt

can be cited for the proposition that the Louisiana Supreme Court

inconsistently follows its contemporaneous-objection rule.” 168

F.2d at 843.

Duncan also asks this Court to consider the state’s

jurisprudence with respect to the procedural rule in question only

at the time the state court barred the claim, which was 1994 (State

v. Duncan, 648 So.2d 1090, 1097-1100 (La. App. 4th Cir. 1994), writ

6
State v. Quatrevingt, 670 So.2d 197, 210-11 (La.), cert. denied, 519 U.S.
927 (1996), did not apply the contemporaneous-objection bar to a Cage claim.
7
State v. Taylor, 669 So.2d 364 (La.), cert. denied, 519 U.S. 927 (1996),
expanded the contemporaneous-objection bar, by limiting review in capital cases
to trial errors to which a contemporaneous objection was offered, abrogating the
previous rule of reviewing all claims, whether preserved by objection or not.

9
denied, 657 So.2d 1028 (La. 1995), cert. denied, 516 U.S. 1148

(1996). Barrientes v. Johnson, 221 F.3d 741, 761 (5th Cir. 2000),

cert. denied, 531 U.S. 1134 (2001), considered the “adequacy” of

the state law ground as of the date the state court determined that

a claim was procedurally defaulted. Notably, however, the

Barrientes court was bound by precedent––specific to cases

concerning the Texas abuse-of-the-writ doctrine--to determine

adequacy as of that date. Barrientes, 221 F.3d at 761.

Our precedent specific to Cage claims does not restrict us to

consideration of the jurisprudence at the time a state court

determined that the claim was procedurally barred. To determine

the adequacy of the state law ground, Muhleisen readily considered

the state jurisprudence without determining when a state court

ruled that a procedural default had occurred.8 The state

procedural bar to the Cage claim provides an adequate and

independent state law bar, so we do not reach the merits of this

claim.

Conclusion.

Given the evidence presented to the jury of Duncan’s guilt, we

do not find his alleged Brady violations undermine confidence in

the outcome of his trial. The state court indeed found that no

8
In 1995 the state court denied Muhleisen the same arguments as he raised
in his federal habeas petition. Muhleisen, 168 F.3d at 842 (citing Muhleisen v.
Whitley, 664 So.2d 418 (La. 1995)). Yet the Muhleisen panel considered the two
1996 Louisiana Supreme Court cases discussed above as well as 1997 jurisprudence,
State v. Hart, 691 So.2d 651 (La. 1997), in determining whether Louisiana’s use
of the contemporaneous-objection rule provided a constitutionally adequate state
law ground.

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contemporaneous objection was lodged to the reasonable-doubt jury

charge, and we defer to that finding. The lack of a

contemporaneous objection to the jury charge acts as a procedural

bar to Duncan’s Cage claim in this habeas action. The judgment of

the district court is in all respects

AFFIRMED.

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