Murray v. Vannoy

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-30282

LARRY MURRAY,

Petitioner-Appellant

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY

Respondent-Appellee

Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:15-CV-827

Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:
*
Larry Murray, Louisiana prisoner # 520360, seeks a certificate of
appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254
petition challenging his second-degree murder conviction and resulting life
sentence. To obtain a COA, he must make “a substantial showing of the denial
of a constitutional right,” 28 U.S.C. § 2253(c)(2), which in turn requires him to
show that jurists of reason would debate whether the petition should have been
resolved in a different manner or that the issues presented deserve

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
May 28, 2020

Lyle W. Cayce
Clerk
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encouragement to proceed further. See Slack v. McDaniel, 529 U.S. 473, 483-
84 (2000); see also Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
The district court rejected Murray’s arguments that (1) trial counsel
denied him the right to testify in his own defense; (2) trial counsel was
ineffective in failing to object to Dr. Edgar Shannon Cooper’s and Officer David
Fauntleroy’s testimony regarding autopsy results and evidence recovered
therefrom when they neither performed nor attended the autopsy, and the
prosecution’s failure to call Dr. Corrigan, who performed the autopsy, violated
his right of confrontation; (3) the prosecutor engaged in misconduct when he
elicited impermissible testimony from witnesses to imply that Murray or
someone in his family had called and threatened an eyewitness prior to trial.
To establish ineffective assistance, a defendant must show that his
attorney’s performance was deficient and that the defendant was prejudiced as
a result. Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to
establish either prong defeats the claim. Id. To demonstrate deficient
performance, the defendant must show that “counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.” Id. at 687. The “court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action might be considered
sound trial strategy.” Id. at 689. To demonstrate prejudice, the defendant
must establish “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id.
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Regarding Murray’s first claim, as the district court explained, the record
is devoid of any evidence to corroborate his conclusory assertion that he
expressed his desire to testify but was prevented from doing so by his attorney,
and therefore Murray had not demonstrated any deficient performance by
counsel. See id. at 687. Significantly, Murray had not provided any
information regarding what his testimony would have been or how it would
have favorably influenced the jury. Moreover, Murray’s claim fails for lack of
prejudice given the overwhelming evidence of his guilt, which included
photographic lineup evidence from two witnesses identifying Murray as the
shooter and an eyewitness’s trial testimony positively identifying Murray as
the man who shot Trahan. See id. at 694.
Second, Murray contends that the district court erred in denying his
claim that counsel was ineffective in failing to object to Dr. Cooper’s and Officer
Fauntleroy’s testimony on the ground that it violated his right of confrontation.
Even assuming that trial counsel was deficient for failing to object to
Dr. Cooper’s testimony regarding the autopsy report and/or Officer
Fauntleroy’s testimony regarding bullets recovered during the autopsy,
Murray cannot show that reasonable jurists would conclude that, but for
counsel’s failure, he would not have been convicted. See Strickland, 466 U.S.
at 694. Dr. Cooper’s testimony involved only the uncontested fact that Trahan
died of blood loss following gunshot wounds. Both Dr. Cooper and Officer
Fauntleroy testified that three bullets were recovered from Trahan’s body.
Murray’s defense was not based on cause of death resulting from gunshot
wounds; instead, his defense was that he was not the shooter, but the trial
evidence established that he was the sole shooter and in fact shot Trahan.
Because there was ample evidence of Murray’s guilt and because neither
Dr. Cooper’s nor Officer Fauntleroy’s testimony was relevant to the sole
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contested issue at trial, reasonable jurists would not debate that the state
court’s rejection of this claim is entitled to deference.
Third, Murray argues that the district court erred in denying his
prosecutorial-misconduct claim. He renews his assertion that the prosecutor
made impermissible comments which pervaded his trial and prejudiced the
jury against him. To be successful on a claim of prosecutorial misconduct, the
applicant must show that the prosecutor’s remarks “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” Geiger
v. Cain, 540 F.3d 303, 308 (5th Cir. 2008) (internal quotation marks and
citation omitted). In making this determination, we look to the remarks’
prejudicial effect, the impact of any cautionary instruction, and the strength of
the evidence supporting the verdict. Styron v. Johnson, 262 F.3d 438, 449 (5th
Cir. 2001). The applicant must demonstrate “that the prosecutor’s misconduct
was persistent and pronounced or that the evidence of guilt was so
insubstantial that the conviction would not have occurred but for the improper
remarks.” Geiger, 540 F.3d at 308 (internal quotation marks, citation, and
brackets omitted).
The district court determined that, even if improper, the prosecutor’s
comments in the instant case did not amount to a due process violation because
the comments were not pervasive and because Murray could not show any
prejudicial effect, citing defense counsel’s successful objections to the
comments, the court’s specific instructions to the jury to disregard the
comments and advising that attorney arguments did not constitute evidence,
and the ample evidence of Murray’s guilt.
Murray’s argument to the contrary notwithstanding, jurors are
presumed to follow their instructions. See Richardson v. Marsh, 481 U.S. 200,
206 (1987). In view of the court’s jury instructions and the uncontradicted
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evidence establishing that he committed the offense, Murray has not made a
debatable showing that he would not have been convicted but for the
prosecutor’s remarks. See Geiger, 540 F.3d at 308. Consequently, reasonable
jurists would not debate the district court’s rejection of his prosecutorial-
misconduct claim. See Slack, 529 U.S. at 484.
Finally, Murray seems to suggest that the district court wrongly declined
to hold an evidentiary hearing before denying his § 2254 petition. Murray does
not need a COA to challenge the denial of an evidentiary hearing. See Norman,
817 F.3d at 234. Murray’s claim is unavailing. The determination whether a
state court’s decision was contrary to or involved an unreasonable application
of federal law “is limited to the record that was before the state court that
adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181
(2011). Accordingly, the district court’s review of Murray’s claims was limited
to the record that was before the state courts, and an evidentiary hearing was
not warranted. See id. Inasmuch as Murray complains that the state courts’
refusal to hold an evidentiary hearing on his claims was error and deprived
him of due process, the claim is not cognizable. See In re Gentras, 666 F.3d
910, 911 (5th Cir. 2012) (“Infirmities in state postconviction proceedings are
not grounds for relief under § 2254.”).
For the foregoing reasons, Murray’s motion for a COA is denied. We
construe his motion for a COA with respect to the district court’s denial of an
evidentiary hearing as a direct appeal of that issue, see Norman v. Stephens,
817 F.3d 226, 234 (5th Cir. 2016), and affirm, see Cullen v. Pinholster, 563 U.S.
170, 181-82, 185-86 (2011).
COA DENIED; AFFIRMED.
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