Floyd v. Cain, No. 2:2011cv02819 - Document 78 (E.D. La. 2016)

Court Description: ORDER AND REASONS - Because Floyd has satisfied the standard necessary to overcome the untimeliness of his habeas petition, the Court remands Floyd's petition to the Magistrate Judge for an evaluation on the merits.. Signed by Judge Sarah S. Vance. (NEF: Mag 3)(jjs)

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Floyd v. Cain Doc. 78 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA J OHN D. FLOYD CIVIL ACTION VERSUS NO: 11-2819 BURL CAIN SECTION: R (3) ORD ER AN D REAS ON S Following a joint bench trial in Louisiana state court in J anuary 1982, petitioner J ohn Floyd was convicted of second-degree m urder of William Hines, but acquitted of second-degree m urder of Rodney Robinson. Floyd’s conviction becam e final when the Louisiana Suprem e Court affirm ed the ruling of the trial court on J une 27, 1983. State v. Floy d, 435 So. 2d 992 (La. 1983). Floyd first filed an application for habeas corpus relief in state court on March 2, 20 0 6, twenty-three years after the Louisiana Suprem e Court finalized his conviction. 1 At the conclusion of his post-conviction proceedings in state court, Floyd prom ptly petitioned this Court for habeas corpus relief under 28 U.S.C. § 2254. 2 To overcom e the untim eliness of his petition, Floyd argues that, in light of newly discovered evidence exculpating him of the m urders of both Robinson and Hines, he is 1 R. Doc. 1 at 16 (“Petition for a Writ of Habeas Corpus by a Prisoner in State Custody”). The Innocence Project New Orleans (IPNO) assisted Floyd in subm itting his first habeas petition to Louisiana state court. Between 1983 and 20 0 6, Floyd wrote over 50 0 letters to IPNO and countless letters to other individuals, including the Orleans Parish Crim inal District Court, the District Attorney, United States congressm en, the United States Departm ent of J ustice, the FBI, the NAACP, Southern Poverty Law Center, the Center for Constitutional Rights, and others. Floyd Exhibit 51; Floyd Exhibit 57; Floyd Exhibit 65. It appears that the habeas petition filed by IPNO on Floyd’s behalf is the first tim e his requests for relief have been subm itted in proper legal form . 2 See generally R. Doc. 1. Dockets.Justia.com actually innocent of the m urder of Hines. 3 See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (20 13) (“[A]ctual innocence, if proved, serves as a gateway through which a petitioner m ay pass whether the im pedim ent is a procedural bar . . . or, as in this case, expiration of the statute of lim itations). Finding that Floyd failed to m eet the high standard of actual innocence, the Magistrate J udge issued a supplem ental report recom m ending that Floyd’s petition be dism issed with prejudice as untim ely. 4 Floyd objects to the Magistrate J udge’s Report and Recom m endation (R&R) on several grounds. 5 First, Floyd argues that, contrary to the Magistrate J udge’s view, the evidence overwhelm ingly dem onstrates that Floyd did not, in fact, m urder Robinson. Floyd also argues that because the Magistrate J udge did not find Floyd factually innocent of the Robinson m urder, the Magistrate J udge underestim ated the connection between the m urder of Robinson and the m urder of Hines, which were com m itted within days of each other and under substantially sim ilar 3 R. Doc. 61 (“Petitioner’s Brief Regarding McQuiggin v. Perkins”). Floyd filed his original petition in this Court on Novem ber 11, 20 11. See id. The Magistrate J udge issued a report on Septem ber 28, 20 12, recom m en ding that Floyd’s petition be dism issed with prejudice as untim ely. R. Doc. 36. Floyd objected to the Magistrate J udge’s R&R on several grounds, and this Court overruled Floyd’s objections and dism issed the petition with prejudice on Decem ber 11, 20 12. R. Doc. 52. On J anuary 4, 20 13, Floyd asked the Court to alter or am en d its earlier judgm ent under Rule 59(e) of the Federal Rules of Civil Procedure. R. Doc. 54. In light of the intervening decision of the United States Suprem e Court in McQuiggin v. Perkins, 133 S. Ct. 1924 (20 13), holding that proof of a habeas petitioner’s actual inn ocence overcom es any untim eliness of his petition, the Court granted Floyd’s Rule 59(e) m otion and rem anded the case to the Magistrate J udge to determ ine whether McQuiggin provided Floyd an avenue for relief. R. Doc. 59. Floyd and the State then subm itted supplem ental briefing on the issues of McQuiggin an d Floyd’s actual innocence. R. Doc. 61; R. Doc. 63; R. Doc. 66. 4 R. Doc. 67. 5 See generally R. Doc. 68. 2 circum stances. In addition, Floyd contends that all of the evidence com pletely underm ines the credibility of Floyd’s confession to the m urder of Hines. Finally, Floyd argues that the Magistrate J udge departed from the correct legal standard and neglected to consider the facts of this case in light of a n um ber of other actual innocence cases. Having reviewed the parties’ original briefing, the parties’ supplem ental briefing regarding Floyd’s actual innocence, the Magistrate J udge’s R&R, and Floyd’s objections to the R&R, the Court sustains Floyd’s objections and rejects the Magistrate J udge’s finding that Floyd’s petition is untim ely. In doing so, the Court rem ains m in dful that the actual innocence standard confronted by Floyd “perm its review only in the ‘extraordin ary’ case.” House v. Bell, 547 U.S. 518, 538 (20 0 6) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Nonetheless, the Court finds that it is unlikely that any reasonable juror weighing the eviden ce in this case would vote to convict Floyd of the m urder of William Hines. Police uncovered no physical evidence and n o eyewitness testim ony linking Floyd to the scene of the crim e. No weapon or other inculpatory item was found in Floyd’s possession, and no coherent m otive has ever been suggested. Rather, Floyd’s conviction was based entirely on his own statem ents: a signed confession and an alleged barroom boast. But Floyd did not only confess to and boast about killing Hines; Floyd confessed to and boasted about killing Robinson as well. And the considerable forensic evidence found on the Robinson scene excludes the possibility that Floyd killed Robinson as described in his confession and strongly suggests that Floyd did not kill Robinson at all. Physical evidence recovered on the scene of the Robinson m urder suggests to a near certainty that Robinson was stabbed to death by an African-Am erican m an with type A blood shortly after Robinson and the m an had sex. The eviden ce therefore excludes Floyd, who is white and has type B blood. Sem en produced by a type A m ale was found 3 both in Robinson’s body and on a tissue beside Robinson’s hotel room bed. A cap stained with Type O blood—m atching Robinson—was found near Robinson’s body. The cap contained hairs from an African-Am erican m ale, and the hairs did not m atch Robinson, who was African Am erican. Fingerprints taken from the scen e, and not revealed until years after trial, do not m atch Floyd’s. Hairs—also new eviden ce—found in Robinson’s bed, on the sem en-stained tissue, and around Robinson’s hotel room were produced by two different African-Am erican m en. Finally, an eyewitness saw an African-Am erican m ale running from the scene with one hand in his pocket and looking over his shoulder as if “he believed som eone was following him .”6 Floyd’s confession to the Robinson m urder, which the evidence before the Court strongly suggests Floyd did not com m it, is strikingly sim ilar to his confession to the Hin es m urder, and the two confessions were obtain ed together. The persuasive force of the two confessions are linked: if Floyd was willing—for whatever reason—to confess falsely to killing Robinson, then it is significantly m ore likely that he falsely confessed to the Hin es m urder too. The credibility of Floyd’s confession is further underm ined by new eviden ce supporting Floyd’s consistent allegation that NOPD officers beat him to coerce his confession, and new evidence of Floyd’s vulnerability to suggestion and lim ited m ental capacity. Floyd also presents further evidence of his innocence of the Hines m urder. This eviden ce in cludes: 1) the striking sim ilarity between the Robinson and Hines m urder, which suggests that the sam e African -Am erican m ale with type A blood com m itted both m urders; 2) new evidence that, contrary to the lead detective’s trial testim ony, Hines had 6 Floyd Exhibit 2 at 7. 4 a preference for African-Am erican m en; 3) African-Am erican hair found in Hin es’ bed; and 4) fingerprints found at the scene of Hines’ death that m atch neither Hines nor Floyd. As m ore fully explained below, the Court recognizes that a confession is generally strong eviden ce of guilt, but finds that the inculpatory statem ents at issue in this case are unreliable an d are therefore unlikely to, standing alone in the face of considerable exculpatory evidence, cause any reasonable, properly instructed juror to vote to convict Floyd of the m urder of William Hines. The Court therefore finds that Floyd has m et the dem an ding standard of actual innocence and rem ands this case to the Magistrate J udge for a report and recom m endation on the m erits of Floyd’s petition. I. BACKGROU N D A. Th e Pe titio n e r At the tim e of the m urders of William Hines and Rodney Robinson, petitioner J ohn Floyd, then thirty-two years old, was a “drifter,” living in the French Quarter of New Orleans. 7 According to Floyd, he m oved to New Orleans in 1975 and interm ittently worked as a furniture refinisher an d deckhand. 8 Although at one tim e Floyd m aintained a perm an ent residence, he m ostly lived in m otels or stayed with friends in the Fren ch Quarter. 9 According to NOPD Detective J ohn Dillm an, Floyd was a prostitute with “no m eans of support” and who would have sex with m en in exchange for a place to stay. 10 7 Floyd Exhibit 45 at 241 (Trial Transcript, State v. Floy d) (testifying as to his age). 8 Id. at 242-43. 9 Id. at 243-44, 252. 10 Id. at 10 3. 5 Floyd testified that he “never hustled on the street,” because he “always had m oney [from ] work[ing] on the boats and stuff.”11 Floyd also said people let him stay at their hom es because he would “help them out,” not because they expected sex, although som etim es Floyd had sex with the people he stayed with because he “wanted to.”12 Dr. Marvin F. Miller, a psychiatric and clinical m edicine expert who exam in ed Floyd’s com petence to stand trial, referred to Floyd as a “street person,” “in the sense of having only tran sient relationships, drinking a lot [and] using drugs . . . m aking his living, if you will, by accom m odating to the wishes of other people.”13 It is undisputed that Floyd was an alcoholic and a drug user at the tim e of the m urders. He was known in the French Quarter as “Crazy J ohnny” because when Floyd drank heavily, “[h]e caused a lot of problem s.”14 B. Th e Crim e s 1. Th e Mu rd e r o f W illiam H in e s At the tim e of his death, William Hines was a m iddle-aged Caucasian m an who worked as an editor for the Tim es-Picayune newspaper. 15 Police found Hines’s body in the bedroom of his hom e, located on Governor Nicholls Street in the French Quarter, at 11 Id. at 278. 12 Id. at 279. 13 Id. at 175. 14 Id. at 56. The witness who explained the background behind Floyd’s nicknam e testified that these “problem s” were “altercations” with other bar custom ers. Id. at 54-55. When Floyd’s counsel referred to Floyd’s getting into “fights” at bars, the witness corrected defense coun sel to say, “[n]ot fights. Most of them were verbal.” Id. at 66. 15 Floyd Exhibit 3 at 3 (NOPD Supplem ental Report, Murder of William Hin es); Floyd Exhibit 11 at 4 (describing Hin es as “m iddle-aged”). At the tim e of his death, Hines had worked for the Tim es Picayune newspaper for approxim ately twenty years. Floyd Exhibit 45 at 16. 6 approxim ately 1:25 p.m . on Novem ber 26, 1980 . 16 Orleans Parish Coroner Frank Minyard determ ined that Hines had been dead for at least twenty-four hours before police found his body, which m eans that Hines was m urdered—at the latest—on Novem ber 25, 198 0 . 17 Hines was last seen alive at approxim ately 9:10 p.m . on Novem ber 24, 1980 . 18 A friend and co-worker of Hines told police on the day the body was discovered that Hines “had not reported for work in the past two days.”19 J ohn Dillm an served as lead detective for the Hines m urder investigation. According to his police report, Hines’s friend Thom as Bloodworth reported that Hin es was gay and “frequented several of the gay bars in the Fren ch Quarter area.”20 Bloodworth also told Detective Dillm an that Hines “would frequently attem pt to pick-up sexual partners while in an intoxicated condition.”21 Another friend, Nobert Raacke, “stated essentially the sam e inform ation.”22 According to Detective Dillm an’s report, J ohn Rue Clegg, a close friend of Hines and the last person to see Hin es alive, 23 told Detective Dillm an that Hin es “frequently had sexual relations with both black and white 16 Floyd Exhibit 1 (NOPD Incident Report, Murder of William Hin es). 17 Floyd Exhibit 3 at 3. 18 Id. at 5. 19 Id. at 2. 20 Id. at 4. 21 Id. 22 Id. 23 Id. (“[Bloodworth] went on to say that to his knowledge the last person to see the victim alive was another friend, one J ohn Clegg.”). 7 m ales” and that he “frequented several of the gay bars in the French Quarter area, often in the early m orning hours.”24 Based on their assessm ent of the crim e scene, police believed Hin es was m urdered by a welcom ed visitor. There were no signs that the perpetrator forced entry into Hines’s hom e. 25 The police report notes that “the victim had apparently undressed and folded his clothing on a chair next to the bed.”26 Police also found “two highball glasses [containing alcohol] on each side of the bed,” as if Hines had shared a drink with his killer. 27 The NOPD Crim e Laboratory analyzed eviden ce recovered from the crim e scene and found hairs belonging to an African-Am erican person on Hines’s bed sheets. 28 Hines had apparently been in bed with his killer, because “[f]rom all indications, the victim had been stabbed while in the bed, jum ped from the bed and began to run through the room , falling to the floor on the right side of the bed.”29 Detective Dillm an later described the scen e as “one of the bloodiest that [he has] ever seen” and stated that “it was obvious that there 24 Id. at 6. 25 Id. at 3 (“Entrance into the victim ’s apartm ent was gained through a wooden door, which led into the living room of the apartm ent. This door was found ajar and no forced entry was visible.”). 26 Id. 27 Floyd Exhibit 45 at 118; accord Floyd Exhibit 11 at 3 (August 26, 1998 J upiter Entertainm ent Interview with J ohn Dillm an) (“[T]here was [sic] two glasses on the nightstand near the bed with alcoholic beverages in the glasses so it appeared that whoever had killed Mr. Hin es (A) . . . knew him and (b) that they had been drinking together.”). An NOPD Crim e Scene Technician Report, however, suggests that one of the glasses was found in the kitchen rather than the bedroom . Floyd Exhibit 5 at 3. 28 Floyd Exhibit 40 (Decem ber 3, 1980 NOPD Crim e Laboratory Report). 29 Floyd Exhibit 3 at 3. 8 had been a struggle for som e tim e in the room .”30 The Coron er opin ed that Hines’s cause of death was “m ultiple stab wounds of the head and chest.”31 2. Th e Mu rd e r o f Ro d n e y Ro bin s o n Approxim ately three days after the Hin es m urder, on Novem ber 28 , 1980 , a guest at the Fairm ont Hotel in New Orleans found a naked African-Am erican m an stabbed to death in the hallway of the hotel’s tenth floor shortly before 4:45 a.m . 32 At the tim e of his death, Rodney Robinson worked as the Personnel Director for the Hilton Hotel in Houston, Texas. He was in New Orleans visiting his fam ily for Thanksgiving. 33 Robinson left the Fairm ont Hotel on the m orning of Novem ber 27, Thanksgiving Day, to spen d the day with his grandm other and uncle in Uptown New Orleans before m eeting a friend nam ed David Hennessy around 5:30 p.m . at Hennessy’s hom e. 34 Robinson and Hennessy went to several bars that night before Robinson drove Hennessy hom e to the Lakeview neighborhood of New Orleans at 3:15 a.m . 35 Robinson told Hen nessy that he was returning to his hotel for the night. 36 Robinson was found dead less than ninety m inutes later. 30 Floyd Exhibit 11 at 2-3. 31 Floyd Exhibit 3 at 2-3. 32 Floyd Exhibit 4 at 2 (NOPD Supplem ental Report, Murder of Rodney Robinson). 33 Id. at 8 . 34 Id. at 8-9. 35 Id. at 10 . 36 Id. 9 Robinson was found lying just outside of hotel room num ber 10 91. 37 The police report listed Robinson’s estim ated tim e of death as 4:35 a.m . 38 Police noticed a blood sm ear along the wall “leading to room 10 95,” which was later determ ined to be Robinson’s room . 39 Police also found a blue knit cap, stained with blood, in the sam e hallway as Robinson’s body. 40 Analysis by the NOPD crim e laboratory found that the blood on the cap was type O. 41 Hair belonging to an African Am erican—but not, according to the NOPD lab, belonging to Robinson—was also found on the blue knit cap. 42 The locks on Robinson’s hotel room door were functional, and there was no sign of forced entry. 43 Inside the room , police found drinking glasses, containing “what appear[ed] to be bourbon,” on each end table next to the hotel bed. 44 “Several articles of clothing” were found lying around the room . 45 The bed was stained with blood, and police found blood spatter throughout the room . 46 Officers also found a white tissue paper 37 Floyd Exhibit 3 at 4. 38 Id at 1. 39 Id. 40 Id. at 6. 41 Floyd Exhibit 10 (Decem ber 12, 1980 NOPD Crim e Laboratory Report). 42 Id. 43 Floyd Exhibit 3 at 4. 44 Id. 45 Floyd Exhibit 4 at 5. 46 Floyd Exhibit 3 at 4. 10 stained with sem in al fluid on the floor next to the bed. 47 According to the police report, Hennessy told NOPD detectives that Robinson was gay and that “all of Robinson’s lovers were white m ales.”48 Per the report, Hennessy also said that Robinson would never have sex with a black m an. 49 The assistant coroner noted that Robinson had suffered m ultiple stab wounds to his neck, shoulders, an d chest. 50 According to Detective Dillm an: As soon as [he] walked into that crim e scene [he] knew again from intuition and working these cases year in and year out . . . that [this was] the sam e perpetrator. The [M.O.] was just there, no forced entry # 1, a blood bath, blood everywhere, the sam e type of defensive wounds that Bill Hines had, the blood splattered all over the wall, all over the carpeting, nothing stolen from the room . . . and glasses with alcohol beverage in them , sam e exact [M.O.] 51 Hotel guests in the room s nearest Robinson’s reported hearing som eone in the hallway scream ing for help, “som eone running in the hallway and the sound of som eone falling.”52 Another guest reported hearing “a door opening, rapid footsteps in the hallway, and the scream s.”53 A hotel security guard nam ed Gladys McKinney reported to the Fairm ont Hotel’s in-house detective that she saw an African-Am erican m an running from 47 Id. at 5. 48 Floyd Exhibit 4 at 10 . 49 Id. 50 Floyd Exhibit 3 at 5. 51 Floyd Exhibit 11 at 4. 52 Floyd Exhibit 2 at 6. 53 Id. at 7. 11 the back door of the hotel shortly before the police arrived. 54 According to McKinney, the m an was wearing blue jeans an d a blue jacket and was “not dressed neatly.”55 McKinney saw the m an run out of the hotel’s service elevator and away from the hotel, toward the street. As he ran, the m an kept his right hand in his jacket pocket, and he turned around twice, as if “he believed som eone was following him .”56 According to the police report, NOPD Detective Michael Rice, lead investigator for the Robinson m urder, believed “McKinney witnessed the perpetrator . . . m aking good his escape.”57 C. Flo yd ’s Co n victio n Police arrested J ohn Floyd on J anuary 19, 1981. Detective Dillman and NOPD Officer J ohn Reilly found Floyd drinking at the Louisiana Purchase Bar in the French Quarter som etim e that afternoon. 58 At the bar, Detective Dillm an and Officer Reilly bought Floyd at least one drink before taking him outside to arrest him . 59 After transporting Floyd to NOPD’s Hom icide Office, Detective Dillm an and Officer Reilly, joined later by Detective Rice, interrogated Floyd about both m urders. 60 In itially, Floyd denied any involvem ent in either m urder. At som e point during the interrogation, 54 Floyd Exhibit 4 at 7. 55 Id. at 12. 56 Id. at 7. 57 Id. at 12. 58 Id. at 7. 59 Floyd Exhibit 73 at 56 (Pre-Trial Evidentiary Hearing, State v. Floy d) (testifying that “I think that Officer Reilly had bought a couple of beers and, in fact, bought Mr. Floyd a beer.”). 60 Id. at 13-14. 12 according to Detective Dillm an, Floyd becam e “very em otional . . . sobbing that he needed help [and] that he was, in fact, involved in these m urders.”61 The officers then obtained from Floyd signed confessions to the m urders of Rodney Robinson and William s Hines. Floyd’s signed confession to the Hines m urder, taken by Detective Dillm an at 8:35 p.m ., states that Floyd confessed to the officers because he “killed two people and [he was] sick an d needed help.”62 The confession describes Floyd’s encounter with Hines as follows: During October and Novem ber of [1980 ] I was strung out on dope and whiskey. . . . I m et this guy on Bourbon . . . and I was drinking a[]lot. . . . He took m e hom e with him and I was going to spend the night with him . He lived on Gov. Nicholls [S]t. We went through[] a gate and into his apartm ent. We were both drinking. We both got into bed and we had sex. Then he told m e that he wanted to fuck m e and I went crazy. I had a knife in m y boot and I stabbed him a bunch of tim es. Then I ran out of the house and I went back down on [B]ourbon [Street] to the bar. I stayed drinking and the n ext day I heard on the street that he was dead. 63 According to the confession, Floyd stated that the sex occurred “[i]n his bed in the bedroom .”64 When asked to describe the sexual activity, Floyd stated: “We sucked one another and I fucked him . Then he tried to fuck m e.”65 When officers asked Floyd what Hines did with his clothing, Floyd said, “I undressed and placed m y cloth[e]s on the bed. Then I put them on a chair. I went to the bathroom and when I cam e back, he was n aked 61 Id. at 59. 62 Floyd Exhibit 8 at 1 (J anuary 1, 1980 [sic] Statem ent of J ohn D. Floyd, Murder of William Hines). 63 Id. at 3. 64 Id. at 4. 65 Id. at 5. 13 in the bed.”66 Floyd’s confession also states that during the stabbing, Hines “fell on the floor next to the bed. [Floyd] got dressed and when [Floyd] left [Hines] was still lying there.”67 The officers also asked whether Floyd was “involved in any other sim ilar incidents,” to which Floyd responded, “Yes. A few days after I stabbed the guy on Gov. Nicholls [S]t[.], I stabbed a black dude in the Fairm ont hotel.”68 Floyd’s signed confession to the Robinson m urder, taken by Detective Rice at 10 :45 p.m ., states as follows: I m et [Robinson] on Bourbon Street next to that gay bar. I think its Orleans where I was standing at. He cam e up an d started to talk to m e and then we went up to the Pubb Bar, that’s on Saint Ann and Bourbon Street. After we got in the bar—I knew he was gay because he had his hand on m y leg and he kindaof [sic] told m e he was gay. We stayed in the bar for a little while and we left and walked to another bar and had a drink. I don’t rem em ber exactly because I was on L.S.D. and half out of m y m ind. We walked som ewhere and got into a car be, [sic] I don’t rem em ber where it was parked becaused [sic] by this tim e I was really fucked up. We got into the car and he drove down close to his hotel and parked the car, but it was not in a parking lot. We walked up the steps into the lobby of the hotel and I saw som e people on the other side of the lobby. I rem em ber getting into the elevator and it seem ed we went up for a long distance. I rem em ber walking down a long hallway and following him to his room . He opened the door with the key then I walked in behin d him and I think he locked it, I am not sure. I think I went to the bathroom and I think by the tim e I got out of the bathroom he had his cloth[e]s off. He told m e he wanted to suck m y dick and after he was finished I wiped m y dick with a pi[e]ce of paper and threw it on the floor. He told m e he wanted [to] fuck m e and that[’]s when I went berserk and pulled m y knife from m y left boot and started stabbing him , m an I just went blank. I pulled m y pants up and ran out the room and ran down the hall. I got on one of the elevators and went to the lobby and ran from the hotel. After I left the hotel I ran to Bourbon Street. I talk [sic] to this guy, I don’t know his nam e. I was talking to him about the killings and I told him I had 66 Id. at 4. 67 Id. at 5. 68 Id. at 6. 14 just killed a dude. I asked him for help and he took m e to Charity Hospital to the Detoxification Center . . . . 69 Floyd waived his right to a jury trial and proceeded to a joint trial on the seconddegree m urder charges before a judge in Orleans Parish Crim in al District Court. 70 At trial, the State called five key witnesses. 71 Harold G. Griffin testified that he knew Floyd from m eeting him “several tim es at the Louisiana Purchase in the French Quarter.”72 Griffin also said that on Novem ber 29, 198 0 , the day after the Robinson m urder, 73 he and Floyd were drinking at the Louisiana Purchase Bar when Floyd asked Griffin if he would walk with Floyd to the Detoxification Center at Charity Hospital. 74 Griffin had been drinking at the bar from 10 :0 0 p.m . to approxim ately 5:0 0 a.m ., when he left with Floyd. 75 According to Griffin, on the walk, Floyd “m entioned that he had been treated in som e type of m ental health facility a couple of tim es and that he heard that perhaps going to the Detox Center would be the next best thing to keep from being held accountable for doing som ething wron g.”76 Griffin said that 69 Floyd Exhibit 9 at 2 (J anuary 19, 1981 Statem ent of J ohn D. Floyd, Murder of Rodney Robinson). 70 Floyd Exhibit 45 at 1, 5. 71 Id. at 2. The State’s first two witnesses—Thom as Bloodworth and Coral Rodriguez—m erely identified the victim s. Id. at 15-37. 72 Id. at 38. 73 Griffin originally stated that this encounter occurred on Decem ber 29, 1980 , but later corrected him self. Id. at 39, 43. 74 Id. at 40 . 75 Id. at 47. 76 Id. at 40 -41. 15 he “couldn’t quote the precise conversation [or] quote [Floyd’s] exact words [because] he wasn’t paying that m uch attention at the tim e.”77 After a few m inutes and m ore “general chatting along,” Floyd asked Griffin if Griffin “heard of the stabbing at the Fairm ont,” and Griffin said “No.”78 According to Griffin, “that was all that was said” and Griffin did not “m ake an y attem pt” to follow up with Floyd about it. 79 After Griffin read about the Robinson m urder in the m orning edition of the newspaper that day, Griffin told NOPD about his conversation with Floyd. 80 Griffin testified that he called NOPD to report the conversation because he was “surprised” that Floyd knew about the Robinson m urder before Griffin read the newspaper article about it on November 29. 81 On cross- exam ination, Griffin adm itted that the Tim es Picayune newspaper had apparently published a story about Robinson in its evenin g edition the day before, on Novem ber 28— several hours before Floyd asked whether Griffin had heard about the m urder. 82 Griffin did not know about the evening edition of the paper until after he notified the police. 83 The State also called Steven Edwards, owner of the Mississippi River Bottom Bar in the French Quarter. 84 Floyd had been to Edwards’s bar a few tim es before Edwards 77 Id. at 41. 78 Id. 79 Id. at 42. 80 Id. at 43-45. 81 Id. at 50 -51. 82 Id. at 50 . 83 Id. at 51-52. 84 Id. at 53. 16 asked Floyd not to com e back anym ore because he “caused a lot of problem s with the custom ers and got in a couple altercations.”85 Som etim e in “the latter part of Novem ber” 198 0 , Edwards spotted Floyd, who had been “drinking heavily,”86 trying to enter Edwards’s bar. According to Edwards, he shouted at Floyd, You can’t go in there. I don’t want you in there because you cause problem s. And [Floyd] said, “Don’t com e fucking with m e. I already wasted one person.” . . . and [Edwards] said, “Who? Bill Hines?” And [Floyd] said, “Yeah, on Governor Nichol[l]s.” And [Edwards] said, “I don’t give a shit. Get away from here.” And [Floyd] turned and left. 87 Edwards testified that he suggested Bill Hines’s nam e to Floyd because Hin es’s m urder had been reported in the newspaper that week. 88 On cross-exam ination, Edwards testified that he did not im m ediately report this conversation to police and that it is “fairly com m on” for certain barroom patrons to m ake these types of com m ents. 89 Edwards also testified that he did not “know[] Floyd to carry a knife” and that he had never seen Floyd show a knife to anyone. 90 85 Id. at 54-55. 86 Id. at 63. 87 Id. at 55-56. 88 Id. at 70 . 89 Id. at 59, 65. This line of questioning and Edwards’s testim ony was apparently a reference to Edwards’s earlier testim ony at a pre-trial evidentiary hearing. At that tim e, Edwards explained that he didn’t think anything of Floyd’s comm ents because “that happen s in the barroom business a lot. . . . People com e in and say things, ‘I beat the piss out of this guy down the street.’” Floyd Exhibit 73 at 45-46. Edwards said that he would “brush it off. . . . just let it go.” Id. at 46. 90 Floyd Exhibit 45 at 66. According to his pre-trial hearing testim ony, Edwards had known Floyd for about four years. Floyd Exhibit 73 at 43. 17 Floyd’s acquaintance and form er sexual partner Byron Gene Reed also testified. 91 Reed testified that he had known Floyd for about three years. 92 He said that after Christm as of 1980 , Reed encountered Floyd on his way hom e, and Floyd asked Reed for m oney. 93 When Reed refused, Floyd said that “he’d take care of [Reed] like he did the one at the Fairm ont.”94 Reed also testified that Floyd threatened him “a couple of tim es” in the past, but that Reed “didn’t pay [any] attention to it.”95 Regarding the Fairm ont com m ent, Reed “didn’t report it [and] just forgot about it.”96 Reed also testified that he had never seen Floyd with a knife or “known him to carry a knife.”97 According to Reed, Floyd was “very gentle” and “a very nice person.”98 Detective Dillm an testified about the m urder of William Hines. As Detective Dillm an explained the layout of the crim e scene, he noted that police found Hines’s body, specifically his legs, “underneath the bed and [police] had to pull the body out from it to check . . . for signs of injuries.”99 When shown a photograph of Hines’s body on the floor next to the bed, Detective Dillm an noted that “in th[e] photograph, the body had been 91 Floyd Exhibit 45 at 75. 92 Id. at 76. 93 Id. at 77. 94 Id. 95 Id. 96 Id. at 8 1. 97 Id. at 8 4-85. 98 Id. at 8 0 . 99 Id. at 92. 18 m oved because . . . the body was directly on the floor on the right-hand side of the bed, near the phone. However, [police] were unable to photograph or check the victim for his injuries until the body was m oved.”10 0 Detective Dillm an also noted that “[t]he victim ’s clothing was on a chair directly next to the bed”10 1 and that this chair and the victim ’s clothes were not visible in the photograph of the victim lying on the floor next to the bed. 10 2 Detective Dillm an also testified that when he and the other officers took Floyd’s confession, “it was evident that [Floyd] had been drinking, but . . . [h]e was not intoxicated at all.”10 3 Detective Dillm an did not know how long Floyd had been drinking in the Louisiana Purchase Bar before he and Officer Reilly arrested Floyd. 10 4 In testifying about the details of Floyd’s confession, Detective Dillm an noted that Floyd “was able to describe the position of the victim ’s body. [Floyd] was able to describe . . . the outlay of the victim ’s apartm ent, even to detail the position of the body where it fell off the bed.”10 5 Detective Dillm an em phasized that Floyd “was able to describe the victim ’s residence and the surrounding area perfectly . . . the living room , the desk, the 10 0 Id. at 93. 10 1 Id. at 92. 10 2 Id. at 95. 10 3 Id. at 10 2. 10 4 Id. at 134. 10 5 Id. at 10 8. 19 bedroom , even the position of the victim ’s clothing,” which Detective Dillm an said Floyd had indicated were “on the chair in the bedroom .”10 6 Regarding the African-Am erican hairs found on Hin es’s bed sheets, Detective Dillm an testified that this evidence did not indicate that an African-Am erican person was involved in Hin es’s m urder. According to Detective Dillm an, Hin es was “very indiscrim in ate” in his sexual preferences “and [race] didn’t m ake a difference,” so the hair sam ples “could have been from the perpetrator or anyone who was in his apartm ent night after night.”10 7 Detective Dillm an also testified that “various people,” whose nam es he did not know, told him that Floyd carried a knife. 10 8 The State’s last witness was NOPD Detective Michael Rice, the lead investigator for the Robinson m urder. Detective Rice testified that, at the tim e of taking Floyd’s confession, Floyd did not “appear” intoxicated. 10 9 On cross-exam ination, Detective Rice testified that the blue knit cap from the Robinson crim e scen e was located further down the hotel hallway from Robinson’s body, away from his hotel room . 110 If one were to leave Robinson’s room (10 95), pass the door to room 10 91 where his body was found, and then keep going past where the blue knit cap was found, the Fairm ont Hotel’s service elevator was on the right side of the sam e hallway. 111 10 6 Id. at 10 8-0 9. 10 7 Id. at 114-15. 10 8 Id. at 135-36. 10 9 Id. at 151. 110 Id. at 157-58 . 111 Id. 20 Detective Rice also testified that he was “positive” that Floyd volunteered the statem ent from his con fession that, after having sex with Robinson, Floyd wiped him self with a piece of paper and threw it on the floor. 112 When the State rested its case, the defen se presented testim ony from seven witnesses, including Floyd. The first witness, Dr. Marvin F. Miller was accepted by the trial court as an expert in psychiatry and clinical m edicine. 113 The presiding judge had previously appointed Dr. Miller to determ in e Floyd’s com petency to stand trial. 114 Dr. Miller testified that if Floyd was intoxicated, “even subclinically,” at the tim e of his confessions, “this could have m ade him . . . vulnerable to even m inim al coercion.”115 According to Dr. Miller, based on Floyd’s lifestyle and “that he was pretty m uch depen dent on other people and pretty m uch accountable to them as a consequence, that too would, in [Dr. Miller’s] opinion, provide [Floyd] with a degree of vulnerability to suggestions, coercion s, very likely greater than the average person . . . .”116 On cross-exam in ation, Dr. Miller revealed that during his exam ination, Floyd adm itted that he “talk[ed] about killing people—putting holes in their heads, to his acquaintances, because of having read about the offenses in question in the paper.”117 112 Id. at 162. 113 Id. at 171. 114 Id. at 172. 115 Id. at 174. 116 Id. 117 Id. at 176. 21 Arthur Huddick, an expert on “the detection and treatm ent of alcoholics an d drug addicts” and an acquaintance of Floyd’s, also testified for the defense. 118 Huddick had invited Floyd to an alcohol program at the St. Louis Com m unity Center in the French Quarter, but Floyd never attended. 119 Som etim e after Floyd’s no-show, Huddick encountered Floyd in the French Quarter, and Floyd appeared high. 120 Huddick testified that he confronted Floyd about being under the influence, and Floyd “got real belligerent, apparently appeared out of control.”121 Huddick testified that this frightened him , an d he did not “frighten easily.”122 Huddick felt “threatened” and “scared.”123 The defense next called NOPD Crim inalist Alan E. Sison to testify. 124 Sison testified that the tissue paper next to the hotel bed at the Robinson crim e scene was stained with sem in al fluid, that the blue cap found in the hallway was stained with type O blood and contained hair from an African-Am erican person, an d that the bed sheet was stained with type O blood. 125 Sison then testified that he analyzed Floyd’s blood type and took saliva and hair specim ens from him . 126 Sison determ ined that Floyd has type B blood 118 Id. at 186-87. 119 Id. at 188. 120 Id. 121 Id. at 188, 192. 122 Id. at 188. 123 Id. 124 Id. at 193. 125 Id. at 194-95. 126 Id. at 196. 22 and that Floyd’s saliva showed “secretor activity.”127 “Secretor activity” refers to a person’s secreting his blood type into his body fluid, such as saliva, sem en, or “even . . . the fluid in [one’s] eyes.”128 Scientific analysis, such as that perform ed by Sison, can therefore determ in e a “secretor’s” blood type from a stain of bodily fluid left at a crim e scene. 129 Sison determ ined that the sem inal fluid on the tissue paper next to Robinson’s bed belonged to a secretor with type A blood. 130 Based on this finding, Sison testified that the sem inal fluid on the tissue could not belong to Floyd—a secretor with type B blood. 131 Sison also testified that the African-Am erican hair found in the blue cap was “dissim ilar” to Floyd’s hair, which at the tim e was long and blonde. 132 Another NOPD Crim inalist, Daniel Waguespack, testified for the defense. 133 Waguespack testified that all of the blood found at the Hin es crim e scene was type A blood; there was no evidence of type B blood on the sam ples obtained from Hin es’s hom e. 134 Waguespack noted that he found African-Am erican pubic hairs on Hines’s bed 127 Id. 128 Id. 129 Id. 130 Id. at 197. 131 Id. 132 See id. at 198; accord id. at 12 (“This m an obviously of som ewhat dirty blonde hair and is Caucasian.”); Floyd Exhibit 42 (Black-and-White Booking Photograph of J ohn Floyd). 133 Floyd Exhibit 45 at 20 2. 134 Id. at 20 4. 23 sheets. 135 Waguespack also found hairs “[bearing] characteristics of the Caucasion [sic] race,” but Waguespack found it unnecessary to include in his report “that Caucasion [sic] hairs were found on the scen e of a crim e where a Caucasion [sic] person was m urdered.”136 The trial court judge asked Alan Sison to conduct additional analyses of som e of the physical evidence found at both crim e scenes. When Sison returned to report his findings, Sison explained that several hairs were found on Hines’s bed sheet—“som e Caucasion-like [sic] grayish hairs, and . . . som e black pubic hairs or dark pubic hairs.”137 Sison testified that he did not have enough hair from the crim e scen e to properly com pare it with Floyd’s hair. 138 Sison also explained that he could not com pare the AfricanAm erican hairs from each crim e scene, because the hair found at the Hin es crim e scene was pubic hair, while the hair found at the Robinson crim e scen e was head hair. 139 There was no way to analyze whether the hairs were sim ilar because the specim ens cam e from different areas of the body. 140 Patricia Daniels, a Medical Technologist with the Orleans Parish Coroner’s Office, testified next. Daniels tested an “oral swab,” “oral sm ear,” “rectal swab,” and “rectal sm ear” collected from the Hines crim e scen e—all of which tested negative for sem in al 135 Id. at 20 5-0 7. 136 Id. at 20 8. 137 Id. at 340 . Hines was 57 at the tim e of his death. Floyd Exhibit 7. 138 Id. at 341. 139 Id. 140 Id. 24 fluid and sperm atozoa. 141 Daniels tested the sam e types of swabs and sm ears collected from the Robinson crim e scene. 142 Robinson’s rectal swab was positive for sem inal fluid, and his rectal sm ear was positive for sperm atozoa. 143 According to Daniels, that the swab and sm ear tested positive indicated that the specim en was “relatively fresh”—only “a couple of hours” old. 144 Daniels also conducted a “secretor test” on the rectal swab an d determ ined that the sem inal fluid belonged to a person with type A blood. 145 Daniels testified that if a “secretor” with type B blood, like Floyd, had recently had sex with Robinson and expelled sem inal fluid, Daniels should have found evidence of that, but testing confirm ed that the fluids at the scene were only from a person with type A blood. 146 Daniels also analyzed Robinson’s blood and determ ined that he had type O blood—the sam e type as the blood found on the hotel bed sheet and the blue cap from the hallway. 147 At this point, the judge asked Daniels to test Floyd’s blood again to determ ine his blood type. 148 After Daniels conducted another blood test of Floyd, she confirm ed that Floyd has type B blood. 149 141 Id. at 212. 142 Id. at 213. 143 Id. 144 Id. 145 Id. at 215-16. 146 Id. at 216-17. 147 Id. at 213. 148 Id. at 217-18 . 149 Id. at 238. 25 Gladys McKinney, the security guard from the Fairm ont Hotel, then testified. 150 According to McKinney, she attem pted to report seeing an African-Am erican m an running from the rear of the hotel, but “nobody paid attention to [her]” and NOPD “didn’t believe [her].”151 McKin ney testified that as she was working in the early m orning of Novem ber 28, she heard the bell of the service elevator and heard som eone running; McKinney then saw “the m an running close by . . . he turned around, turned left and kept going.”152 McKinney also testified that the m an was African Am erican and that he was not wearing a hat. 153 Floyd was the final defense witness to testify. 154 Regarding Floyd’s whereabouts at the tim es of the m urders, Floyd testified that in 1980 , he was “working in California in different places and doing odd work here in New Orleans.”155 On or about Novem ber 20 , 198 0 , Floyd left California to return to New Orleans by bus, and he stopped in m ultiple cities along the way. 156 Floyd testified that the bus trip between each city—San Francisco to San J ose to “Hollywood” to San Antonio to Houston—took several hours, and in som e cities, Floyd m issed the next available bus because he “was out drinking.”157 Floyd 150 Id. at 220 -21. 151 Id. at 222. 152 Id. at 223. 153 Id. at 224. 154 Id. at 239. 155 Id. at 244. 156 Id. at 245. 157 Id. at 245-49. 26 estim ated that he arrived in New Orleans on Novem ber 25 around lunchtim e and stayed at the bus station for a couple of hours because he lost his luggage. 158 Floyd testified that when he finally left the bus station, he went straight to the Louisiana Purchase Bar and “started drinking.”159 Defense counsel introduced into evidence som e of Floyd’s bus tickets to support his testim ony. Floyd testified that on Thanksgiving, Novem ber 27, he went to the Louisiana Purchase Bar’s “Thanksgiving party.”160 He spent the night with either Byron Gene Reed or his friend Morris, and when he left the next day he went back to the Louisiana Purchase Bar to m eet his friend Carl, the bartender. 161 Floyd said that on the day Detective Dillm an and Officer Reilly arrested him , he had been drinking at the Louisiana Purchase Bar sin ce before noon. 162 Floyd also took Quaaludes when he woke up that m orning. 163 According to Floyd’s testim ony, Detective Dillm an and Officer Reilly “drank with [Floyd] for a long tim e” and bought Floyd “five or six beers.”164 Floyd also testified that, during his interrogation, he insisted he was not involved in the m urders of Hines and Robin son and “that’s when [Detective Dillm an] started beating him .”165 Floyd recalled Detective Dillm an “slapping [Floyd] on the side of 158 Id. at 250 . 159 Id at 251. 160 Id. at 256. 161 Id. at 256-58 . 162 Id. at 261-62. 163 Id. at 264. 164 Id. at 262, 265. 165 Id. at 270 . 27 the head,”166 “kicking [Floyd] on the side of the head with his boots,”167 and “knocking [Floyd] off his chair on[to] the floor.”168 Floyd also said that Detective Dillm an “threatened to put [Floyd’s] head through the brick wall and throw [Floyd] out through the window.”169 After that, Floyd testified, he began responding “yes” to all of Detective Dillm an’s questions about the m urders. For exam ple, according to Floyd, Detective Dillm an asked, “did [you] m eet them on Bourbon Street, and [Floyd] said, ‘Yes, I m et them on Bourbon Street[,]’” or Detective Dillm an “would say som ething and [Floyd would] say, ‘Yes, that’s the way it happened.’”170 Floyd said he began com plying with the officers because he “was scared” of “get[ting] killed or m essed up.”171 On cross- exam ination, Floyd testified that he “never killed nobody [sic] in his life,” but that occasionally, he “talked about” killing people while he was out drinking. 172 In his testim ony, Floyd denied that he boasted about killing Hin es or Robinson. As noted, Byron Gene Reed, an acquaintance of Floyd’s, testified when he refused to give Floyd m oney, Floyd said that “he’d take care of [Reed] like he did the one at the Fairm ont.”173 Steven Edwards, owner of the Mississippi River Bar, testified that when he 166 Id. 167 Id. at 272. 168 Id. 169 Id. at 271-72. 170 Id. at 273. 171 Id. 172 Id. at 295. 173 Id. 28 tried to keep Floyd out of his bar, Floyd respon ded, “Don’t com e fucking with m e. I already wasted one person.” Edwards then said, “‘Who? Bill Hines?’ And [Floyd] said, ‘Yeah, on Governor Nichol[l]s.’”174 The trial court judge asked Floyd: You said that you talked about killing people with others. What about the conversation Mr. Reed testified to, Byron Gene Reed? Did that conversation take place as he said it did, that you told him after a confrontation about the guy at the Fairm ont? A: No, sir, I never did say that to him . I cussed him out on the street but I never told him that. The Court: A: You never told him about wasting a guy at the Fairm ont? No, sir. The Court: Never said that? A: I think he got that from the guy who owned the Mississippi River Bar, because they were good friends. The Court: A: Do you think he cam e in here and lied about that? Yes, sir, he’s good about lying. I been knowing him for a long tim e. 175 Floyd also testified about his walk to the Charity Hospital Detoxification Center with Harold G. Griffin. Floyd said that he learned of the Robinson m urder when he saw his friend reading an article about it in the Novem ber 28 evening edition of the Tim es Picayune. 176 Floyd then testified that—consistent with Griffin’s account of their conversation—Floyd asked Griffin if he had “heard about the killing at the Fairm ont?[] 174 Id. at 55-56. 175 Id. at 298-99. 176 Id. at 329-30 . 29 And [Griffin] said, ‘No,’ he hadn’t, an d that’s all I told him .”177 The trial court judge then asked Floyd: Did you tell Mr. Griffin, according to what he testified, that you said to him that you wanted to go to Charity Hospital to Detox because going to Detox would be the next best thing for being accountable for doing som ething wrong? A: I didn’t quite put it like that. I just told him that m ost m ental people in New Orleans – The Court: A: J ohn, did you believe that you had done som ething wrong? No, sir. The Court: And what were you talking about then when you discussed that with Mr. Griffin? A: I was just talking about m y health, is what I was talking about. The Court: What were you doing wrong with your health? You testified . . . that you m ight have had a drinking problem , but you [sic] that you don’t really think that anything really was wrong with you then. A: Well, som etim es m y drinking gets out of hand, and I have to go to Charity and get straightened out. The Court: A: Was it out of hand then? Well, yes, it was. The Court: Did you do things when your drinking got out of hand that you thought were wrong at a later tim e? A: Not nothing [sic]. I can rem em ber everything that I did while I was drinking. The Court: J ohn, we’re talking about a very serious m atter here. You saw the pictures of those two m en. Did you have anything to do with that? A: No, sir. 178 177 Id. at 330 . 178 Id. at 332. 30 The State called NOPD Officer J ohn Reilly as a rebuttal witness. Officer Reilly testified that, during Floyd’s interrogation, Floyd was alone in an office with Detective Dillm an for approxim ately twenty-five m inutes. 179 Officer Reilly said that he could not hear the conversation between Detective Dillm an and Floyd, but that he was “sure if [Floyd] had been beaten, cajoled, or threatened, or whatever, [Floyd] would have had m arks on him .”180 Officer Reilly also testified that he bought Floyd “one beer” before arresting him outside of the Louisiana Purchase Bar and that he was sure that they shared “only one round.”181 At the close of the case, on J anuary 6, 1982, the trial court judge found Floyd not guilty of the second-degree m urder of Rodney Robinson, but guilty of the second-degree m urder of William Hines. On J anuary 21, 1982, the judge sentenced Floyd to life im prisonm ent without the benefit of probation, parole, or suspension of sentence. 182 D. Flo yd ’s N e w Evid e n ce In his habeas petition to this Court, Floyd asserts that an investigation into his case by Innocence Project New Orleans (IPNO) has uncovered significant exculpatory eviden ce unknown to the convicting judge at trial. 183 Floyd’s new evidence is sum m arized below. 179 Id. at 348. 180 Id. at 349. 181 Id. at 356. 182 State Record, Volum e I, page 3, Docket Master entry dated 0 1/ 21/ 1982. 183 R. Doc. 1 at 30 . 31 1. N e w ly-D is co ve re d Evid e n ce in th e H in e s Ca s e Floyd asserts that the following evidence is relevant to the Hines m urder, newlydiscovered, and exculpatory. 184 Fingerprints at the Hin es Crim e Scene Police found two, used whiskey glasses in Hin es’ apartm ent and a bottle of whiskey on Hin es’s kitchen table. On Septem ber 29, 20 0 8, IPNO obtain ed copies of the NOPD Latent Print Unit’s logbook and the envelope in which the prints were stored. 185 Regarding prints on the bottle, som eone noted “NOT VICTIM” and “NOT J OHN FLOYD.”186 NOPD was unable to recover prints from the two glasses. 187 Affidavit of J ohn Rue Clegg According to Detective Dillm an’s police report of the Hines m urder, “Mr. Clegg stated that to his knowledge the victim was hom osexual and frequently had sexual 184 Floyd em phasizes that despite num erous requests, beginning in 20 0 4, the State has been unable to produce any eviden ce from the Hines investigation for DNA testing. R. Doc. at 49-50 . During the investigation of the crim e scen e, police found AfricanAm erican hairs on Hines’s bed sheets and “scrapings” from under Hines’s fingernails. Floyd Exhibit 40 . Apparently, the State was unable to locate this evidence in 20 0 4, and it was likely destroyed by Hurricane Katrina in 20 0 5. R. Doc. 1 at 68-69 & n.18. 185 R. Doc. 1 at 32. 186 R. Doc. 13 at 1, 3 (NOPD Fingerprint Results). During an evidentiary hearing in state court on Floyd’s post-conviction relief application, there was som e dispute as to the authenticity of the han dwritten notes on the envelope and whether these notes actually reflected the results of any fingerprint analyses. Floyd Exhibit 47 at 119-22. NOPD apparently re-analyzed the fingerprints and fingerprint com parisons in 20 11 to confirm that Floyd was excluded as the source of the fingerprints found at both crim e scenes. Floyd Exhibit 8 0 at 11-13. 187 Floyd Exhibit 6 at 3. 32 relations with both black and white m ales.”188 In an affidavit executed on J une 14, 20 0 8, Clegg declares that this report “does not accurately reflect the inform ation [Clegg] gave Detective Dillm an.”189 According to Clegg’s affidavit: [T]he subject of sex per se did not com e up during our interview and [Clegg] did not tell Detective Dillm an that Bill “frequently had sexual relations with both black and white m ales.” [Clegg] was never, in fact, aware of the frequency of his sexual relations with anyone. [Clegg told] Detective Dillm an that Bill’s taste was for black m en as I knew this to be true. . . . [Clegg] know[s] that Bill’s taste was for black m en because when [Clegg and Hines] were at gay bars [Hines] would som etim es point out the m en he found attractive and they were always black. [Clegg] also saw Bill with black m en on several occasions. From [Clegg’s] observations, Bill was often attracted to rough looking black men . . . . 190 J upiter Docum entary and Blood W arning Evidence In 1998, J upiter Entertainm ent interviewed several people involved with the investigations of the m urders of Robinson and Hin es, including Coroner Minyard an d Detective Dillm an, for a potential A&E docum entary. 191 According to Floyd, som e statem ents m ade during these interviews either reveal new inform ation or contradict eviden ce presented at trial. Detective Dillm an also authored a book about the m urders in 198 9, Blood W arning: The True Story of the N ew Orleans Slasher. Details in the book coincide with Detective Dillm an’s statem ents to J upiter Entertainm ent. During Detective Dillm an’s interview with J upiter Entertainm ent, he described how he an d Officer Reilly arrested Floyd: 188 Floyd Exhibit 3 at 6. 189 Floyd Exhibit 21 at 1. 190 Id. at 1-2. 191 Floyd Exhibit 31. 33 We located him drinking in a bar . . . and once we located him and identified him at the bar we m ade a conscious decision of rather than walking in yelling police and having him pull a gun and whole lot of people get hurt that we would wait until the tim e was right where everything was perfect before we arrested him . We went into the bar, we ordered drinks. We started drinking at the bar and actually befriended him . W e started buy ing him drinks. We had a code between m yself and the other undercover officer at the right point and tim e when we felt we could apprehen d him and consider the safety of all the patrons. . . . [T]hen finally when that tim e cam e we m ade the arrest. 192 According to Floyd, Dillm an’s statem ent that he and Officer Reilly “started buying [Floyd] drinks” contradicts trial testim ony that they bought Floyd only one beer and that he was sober when he confessed. According to Floyd, this statem ent also supports his own account of his arrest—that the officers bought him “five or six” drinks before they arrested him . Detective Dillm an also described Floyd’s interrogation in his interview: I spent hours with him . . . . Finally we got to the point, I think what finally broke him was I showed him som e of the scene photographs an d I think when he, a lot of the tim es when he com m itted these m urders he was drinking alcohol on top of PCP and I don’t think he really realized the dam age that he had done, certainly he knew he killed som eone. . . . [B]ut I don’t think he knew the extent of the m ultiple stab wounds, the slashing of the neck . . . and finally when he did look at it I forget which one I showed him , I shown him one of the scene photographs and one of the bodies and for the first tim e he dropped his head . . . and then looked back to m e and his eyes had welled a little and I knew I had him at that point. 193 In Blood W arning, Detective Dillm an recounted showing Floyd “two of the grisliest shots” of the Hines crim e scene in an effort to “crack him .”194 According to Floyd, evidence that 192 Floyd Exhibit 11 at 8 (em phasis added). 193 Id. at 9-10 . 194 Floyd Exhibit 38 at 192 (Excerpts from J ohn Dillm an, Blood W arning: The True Story of the N ew Orleans Slasher (1989)). 34 Detective Dillm an showed him crim e scene photos before he confessed underm ines the theory that his confession was credible because it contained details about the crim e scene. Floyd contends that this evidence also supports his position that he was highly suggestible and therefore vulnerable to police coercion. J udicial Fin dings Regarding Detective Dillm an In 1987, approxim ately six years after Floyd confessed to the m urders, the Louisiana Suprem e Court reversed a trial court’s adm ission of a confession obtained by Detective Dillm an into evidence. In State v. Sew ard, the defendant contended that to obtain his confession, his interrogators—led by Detective Dillm an—“repeatedly hit him in the head, kicked and hit him in the chest and back, pushed him to the floor, and placed a plastic bag over his head. The officers also allegedly threatened, swore and scream ed at Seward in an effort to elicit a confession.” 50 9 So. 2d 413, 415 & n.5 (La. 1987). 195 An officer also “slapped and threatened [the defendant] that m ore beatings would be forthcom ing if he inform ed an yone of the prior beatings.” Id. at 416. The Louisiana Suprem e Court held that the defendant’s account of his interrogation, corroborated by a co-defen dant an d a physician, “at the least . . . preponderantly establishe[d] that Seward was beaten” and that Seward did not voluntarily confess to the crim e. Id. at 419. 196 195 During a pre-trial evidentiary hearing, the defendant in State v. Sew ard testified that Dillm an started the beating and that Dillm an “seem ed to be the boss. He’s the one who was doing all the hard hitting.” Floyd Exhibit 8 1 at 2-3. 196 Floyd also cites Ky les v. W hitley , 514 U.S. 419 (1995), and State v. Knapper, 579 So. 2d 956 (La. 1991), as relevant to his case. In Ky les, the U.S. Suprem e Court reversed a denial of a defen dant’s habeas petition, which asserted various Brady violations. 514 U.S. at 419. Detective Dillm an was the lead detective on the case, id. at 428, and the Court noted that, had the suppressed evidence been introduced, “[t]he jury would have been entitled to find (a) that the investigation was lim ited by the police’s uncritical readin ess to accept the story and suggestions of a [less-than-reliable] inform ant [and] (b) that the 35 Assessm ent of Floyd by Dr. Gregory DeClue In 20 0 9, Dr. Gregory DeClue, a forensic psychologist, exam ined Floyd. Dr. DeClue conducted various psychological tests, which had not been developed at the tim e of Floyd’s trial. 197 According to the results of Dr. DeClue’s testing, Floyd has a full scale IQ of 59, within the “Men tally Deficient (Mentally Retarded) range.”198 Floyd’s “perceptual reasoning” skills score “was near the cutoff between Borderline and Mentally Deficient.”199 All of Floyd’s other scores—verbal com prehension, working m em ory, an d processing speed skills—are in the “Mentally Deficient (Mentally Retarded) range.”20 0 Dr. DeClue also found that Floyd’s oral language, oral expression, listening com prehension, and reading skills are at a second- or third-grade level, “com parable to those of a 7- or 8 -year-old child.”20 1 Dr. DeClue em phasized that Floyd’s “ability to lead police detective who testified was either less than wholly candid or less than fully inform ed . . . .” Id. at 453. In Knapper, the Louisiana Suprem e Court found that the prosecution com m itted a Brady violation by failing to disclose a police report to the defense. 579 So. 2d at 960 61. Detective Dillm an had written the report that the prosecution failed to disclose. Id. at 958. The court’s opinion in Knapper, however, does not criticize or otherwise call into question the credibility or reliability of Detective Dillm an. 197 R. Doc. 1 at 44. 198 Floyd Exhibit 63 at 2. (Affidavit of Dr. Gregory DeClue). For the purpose of this order, unless quoting an external source, the Court uses the term intellectual “ability” or “disability.” See Rosa’s Law, Pub. L. No. 111-256 (20 10 ) (changing legal references to “m ental retardation” to “intellectual disability”). 199 Id. 20 0 Id. 20 1 Id. at 3. 36 understand and com m unicate with others is at about the sam e level.”20 2 In addition, during his exam in ation, Floyd “talked about, with som e pride,” that he developed greater reading and writing skills while incarcerated over the last two decades. 20 3 In his report, Dr. DeClue em phasized that Floyd “yielded to m isleading questions m ore than the average person does” and “shifted his answers . . . in response to subtle pressure” m ore than the average person does. 20 4 In analyzing Floyd’s intellectual ability, Dr. DeClue conducted certain psychological tests to determ ine whether Floyd was m eaningfully participating in Dr. DeClue’s exam ination—in other words, Dr. DeClue tested whether Floyd was “faking it” and therefore deliberately distorting the test results. 20 5 Dr. DeClue determ ined that Floyd was giving his “best effort” and trying to answer Dr. DeClue’s questions correctly. 20 6 Dr. DeClue’s final conclusion, based on all of his testing, was that at the tim e officers obtained Floyd’s confessions, Floyd “was extrem ely vulnerable to police influence and extrem ely susceptible to police pressure.”20 7 20 2 Floyd Exhibit 20 at 5 (J une 23, 20 0 9 Report of Psychological Assessm ent). 20 3 Floyd Exhibit 47 at 47. 20 4 Floyd Exhibit 20 at 4. 20 5 Id. at 2. 20 6 Id. 20 7 Id. at 10 . 37 2. N e w ly-D is co ve re d Evid e n ce in th e Ro bin s o n Cas e Floyd also asserts that the following evidence pertaining to the m urder of Rodney Robinson is newly discovered and should be considered with the other eviden ce of his innocen ce in the Hines m urder: Fingerprints at the Robinson Crim e Scene Police found two drinking glasses containing alcohol next to the bed in Robin son’s hotel room . Police also found fingerprints on the passenger side of Robinson’s car and on a glass, a cup, and a whiskey bottle inside the vehicle. On Septem ber 29, 20 0 8, IPNO obtained test results for these fingerprints. All of the fingerprints on one of the glasses next to the bed belonged to Robinson. 20 8 Three of the fingerprints on the other glass were noted not to belong to Robinson’s friend, David Hennessy, or to Floyd. 20 9 The fingerprints from Robinson’s car were labeled, “NOT . . . DAVID HENNESSY,” “NOT VICTIM,” and “NOT J OHN FLOYD.”210 DNA Testing of Hairs at the Robinson Crim e Scene At trial, Floyd and his counsel knew that African-Am erican hair that did not m atch Robinson’s had been found on the blood-stain ed knit cap in the hotel hallway. Since then, Floyd has learned that eviden ce recovered from the Robinson crim e scene in cluded “two hairs” found on the sem en-stain ed tissue, “several sm all hairs” obtained from Robin son’s bloody bed sheets, and “one hair” found on an envelope in Robinson’s hotel room . 211 DNA 20 8 Floyd Exhibit 13 at 3 (“I.D. 6 THRU 14 VICTIM”). 20 9 Id. 210 Id. 211 Floyd Exhibit 16 at 2. 38 testing excluded Floyd as the source of any of the hairs. 212 Four of the hairs were “consistent with one source,” and five of the hairs were “consistent with a second source”—that is, the hair sam ples belong to two different people. 213 All of the hairs “fall into groups of profiles” belonging to som eon e who is “African or African-Am erican.”214 Floyd em phasizes that by the tim e he discovered the additional hairs from the Robinson scene, the State had lost or destroyed the physical eviden ce from the Hines scene, m aking any com parison between the two im possible. 215 Floyd contends that all of this newly-discovered eviden ce, when viewed with the original eviden ce presented at trial, supports his position that he is actually innocent of the m urder of William Hines. II. TH E REPORT AN D RECOMMEN D ATION In his supplem ental Report and Recom m endation regarding whether the Suprem e Court’s holding in McQuiggin v. Perkins afforded Floyd relief, the Magistrate J udge concluded that Floyd “failed to m ake a convincing showing of ‘actual innocence’ as required in McQuiggin” and that therefore this Court should dism iss his petition as untim ely. 216 In arriving at this conclusion, the Magistrate J udge relied on the facts articulated by the Louisiana Suprem e Court in its 1983 opinion affirm ing Floyd’s 212 Floyd Exhibit 15 at 5. 213 See id. at 5. 214 Floyd Exhibit 18. 215 R. Doc. 1 at 68 -69. 216 R. Doc. 67 at 3. 39 conviction. In its opinion, the Louisiana Suprem e Court em phasized that both victim s were “active hom osexual[s],” that Floyd m ade incrim inating statem ents to two non-police officers, and that Floyd confessed to both crim es. The Magistrate J udge then explained that the Court’s task is not “to determ ine with absolute certainty whether petitioner killed William Hines . . . . [R]ather, the only question this Court needs to decide is whether, based on th[e] evidence, it is m ore likely than not that no reasonable, properly instructed juror would find petitioner guilty beyond a reasonable doubt.”217 Nonetheless, in analyzing all the evidence, the Magistrate J udge seem ed to focus on absolutes—reasoning that the lack of physical evidence pointing to Floyd “is not determ inative,” “is not proof of petitioner’s innocen ce,” and “in no way precludes petitioner’s presen ce” at the crim e scenes. 218 The Magistrate J udge also explain ed that, in gen eral, “confessions are com pelling eviden ce of guilt,” and that “a reasonable juror could find that both of petitioner’s confessions were unreliable given petitioner’s low IQ and purported susceptibly to suggestion, [but that] another equally reasonable juror could validly reach the contrary conclusion.”219 Before concluding his report, the Magistrate J udge noted that he “rem ain[ed] troubled” by the facts of this case. 220 217 R. Doc. 67 at 10 . 218 Id. at 11. 219 Id. at 12. 220 Id. at 13 & n.27. 40 Floyd objects to the R&R on five grounds. 221 First, Floyd argues, the Magistrate J udge failed to properly consider the overwhelm ing weight of evidence that Floyd is factually innocent, as opposed to m erely “not guilty,” of the Robinson m urder. Second, Floyd contends that, due to the relatedness of the crim es, his factual innocence of the Robinson m urder indicates that he is also innocent of the Hin es m urder. Third, Floyd argues that newly-discovered eviden ce further exculpates him as the perpetrator. Floyd’s fourth and fifth objections are related: he argues that the Magistrate J udge strayed from the proper legal standard by requiring Floyd to conclusively prove his innocen ce, and failed to consider dispositive case law. 222 III. LEGAL STAN D ARD The Antiterrorism and Effective Death Pen alty Act of 1996 im poses a one-year statute of lim itations period on a prisoner who applies for a writ of habeas corpus from federal court. 28 U.S.C. § 2244(d)(1). In “extraordinary” cases, however, a crim inal defendant whose habeas petition is untim ely m ay overcom e this procedural bar if he can prove his “actual innocence.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (20 13) (citing House v. Bell, 547 U.S. 518, 538 (20 0 6); Schlup v. Delo, 513 U.S. 298, 329 (1995)). “Actual innocence” does not require “conclusive exon eration.” House, 547 U.S. at 553. Rather, a petitioner asserting his actual innocen ce “m ust establish that, in light of new evidence, it is m ore likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Id. at 536-37 (quoting Schlup, 513 U.S. at 221 See generally R. Doc. 68. 222 Id. 41 327). In other words, a petitioner m ust prove that it is m ore likely than not that any reasonable, properly instructed juror would have reasonable doubt. Id. at 538. The actual innocence standard encom passes three im portant principles. First, a “credible [actual innocence] claim requires new reliable evidence—whether it be exculpatory scientific eviden ce, trustworthy eyewitness accounts, or critical physical eviden ce—that was not presented at trial.” Id. at 537 (quoting Schlup, 513 U.S. at 324). Second, although a petitioner asserting his actual innocence m ust present new evidence, the court’s analysis “is not lim ited to such evidence.” Id. “The habeas court m ust consider all the eviden ce, old and new, in crim inating and exculpatory, without regard to whether it would necessarily be adm itted under rules of adm issibility that govern at trial.” Id. at 538 (quoting Schlup, 513 U.S. at 327). Third, the “dem anding” actual innocence standard “perm its review only in the extraordinary case.” Id. (citation om itted); see also Fairm an v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (“[O]ur precedent confirm s that the m ountain . . . a petitioner m ust scale in order to prove a fundam ental m iscarriage claim is daunting indeed.”). “At the sam e tim e, though, the [actual in nocence] standard does not require absolute certainty about the petitioner’s guilt or innocence.” House, 547 U.S. at 538. The court m ust determ ine whether the facts of innocence are so atypical or rem arkable that “no juror, acting reasonably, would have voted to find [the petitioner] guilty beyond a reasonable doubt.” McQuiggin, 133 S. Ct. at 1928 (citations om itted). In doing so, the court m ust “assess the likely im pact” of “the overall, newly supplem ented record” on a jury and m ake “a probabilistic determ ination about what reasonable, properly instructed jurors would do.” House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 299). 42 IV. D ISCU SSION A. Flo yd D id N o t U n re as o n a bly D e lay Pre s e n tin g Su fficie n tly “N e w ” Evid e n ce to th e Co u rt The State contends that Floyd unjustifiably delayed presenting his actual innocen ce claim s to this Court and that the tim ing of Floyd’s habeas petition should underm ine the credibility of his actual innocence claim . 223 In McQuiggin, the Suprem e Court held that there is no threshold diligence requirem ent for a petitioner wishing to assert a claim of actual innocence to overcom e the applicable statute of lim itations. 133 S. Ct. at 1935-36. Rather, “unexplained delay” is m erely a factor habeas courts should consider in “evaluating the reliability of a petitioner’s proof of innocence.” Id. at 1935. A court should consider, for exam ple, “how the tim ing of the subm ission and the likely credibility of [a petitioner’s] affiants bear on the probable reliability of that evidence.” Schlup, 513 U.S. at 332; see also Dow thitt v. Johnson, 230 F.3d 733, 742 (5th Cir. 20 0 0 ) (findin g petitioner’s n ewly-discovered evidence “particularly suspect” because he presented only affidavits consisting of hearsay that were inconsistent with the physical evidence). Here, the tim ing of Floyd’s petition does not seriously underm in e the reliability or credibility of his newly-discovered evidence. Much of the evidence (fingerprint analyses, DNA testing, and Dr. DeClue’s expert opinion) is science-based an d therefore less susceptible to m anipulation by a petitioner “l[ying] in wait [to] use stale eviden ce.” McQuiggin, 133 S. Ct. at 1936; see also Schlup, 513 U.S. at 324 (listing “exculpatory scientific eviden ce” as an exam ple of “new reliable evidence”). 223 R. Doc. 63 at 12. 43 As for the newly- discovered statem ents by Detective Dillm an and J ohn Rue Clegg, the State does not argue that any of these people have died or otherwise cannot rebut new eviden ce upon further questioning. McQuiggin, 133 S. Ct. at 1936. Notably, NOPD Detective J ohn Dillm an is aligned with the State and thus has no reason to concoct evidence tending to underm ine the State’s interest in Floyd’s conviction. Cf. House, 547 U.S. at 552 (noting that “incrim inating testim ony from inm ates, suspects, or friends or relations of the accused” m ay have questionable probative value). Sim ilarly, Clegg was a close friend of one of the victim s, and has no apparent conn ection to Floyd, which m akes it unlikely that Clegg would execute an untruthful affidavit in support of Floyd’s innocence. See House, 547 U.S. at 551 (crediting post-conviction witness testim ony when “the record indicate[d] no reason why [they] would have wanted . . . to help [the defendant]”); Schlup, 513 U.S. at 316 (finding “particularly relevant” newly-obtained affidavits by “black inm ates attesting to the innocen ce of a white defen dant in a racially m otivated killing”). Therefore, non e of the new evidence on which Floyd depends is facially unreliable, and the Court does not consider it to be so m erely because it was allegedly discovered years after Floyd’s conviction. The State also argues that the “vast m ajority” of Floyd’s eviden ce is “not new, but was available and in fact introduced at Floyd’s trial” and that therefore the Court should not consider it in its evaluation of Floyd’s actual-innocence claim . 224 As an initial m atter, this argum ent rests on a m isstatem ent of the facts. For exam ple, the State contends that “the lack of Floyd’s fingerprints at either crim e scene was introduced at his trial an d 224 Id. at 4. 44 properly discounted.”225 The record reveals, however, that the word “finger” or “fingerprint” was m entioned only three tim es, none of which pertain ed to evidence found at either crim e scene. 226 Additionally, the State argues that Floyd’s “claim s of retardation” are not new because Floyd originally pleaded not guilty by reason of insanity an d, following a “lunacy hearing,” the court found Floyd com petent to stand trial. 227 The State also notes that Dr. Marvin Miller, one of the doctors who evaluated Floyd, testified in response to a single question that Floyd “m ay well have [been] vulnerable to even m inim al coercion.”228 Read in context, Dr. Miller’s testim ony was that Floyd’s habitual intoxication and drug depen den ce (as well as his “hom osexual activity”) indicated that Floyd was vulnerable to coercion. Dr. Miller explained: 225 Id. at 4-5. 226 Floyd Exhibit 45 at 20 9 (“Q: How specific can you be in com paring hairs? Is a hair like a fingerprint?” “A: No, sir.”), 217 (“Q: You didn’t blood type the defendant, did you? . . . How hard is that to do?” “A: To blood group the defendant? You just have to stick him in the finger.”), 333 (“Q: Don’t you rem em ber when you were booked . . . they took your fingerprints and they took a picture of you?” “A: Yes, sir.”), 334 (“Q: And you rem em ber they took your fingerprints and they got som e inform ation about where you’re from and they took your picture, do you rem em ber that?” “A: Yes, sir, okay.”). 227 R. Doc. 63 at 5-6; see State Record, Volum e 1, page 1, Docket Master entry dated 0 4/ 0 8 / 1981. 228 R. Doc. 63 at 6. 45 [I]f, in fact, [Floyd] were intoxicated, even subclinically, this could have well have [sic] m ade him vulnerable to even m inim al coercion. I would say as well that, given the lifestyle that he described, given the fact that he was pretty m uch dependent on other people and pretty m uch accoun table to them as a consequence that that too would, in m y opinion, provide him with a degree of vulnerability to suggestions, coercions, very likely greater than the average person would have, or som eone who was not living in this particular lifestyle, som eone who was not abusing drugs and/ or alcohol, and som eone who was not apparently involved in som e kind of hom osexual activity. 229 This testim ony does not address Floyd’s m ental capacity an d what effect, if any, his intellectual capabilities had on his suggestibility or vulnerability to police pressure, the subject of Dr. Gregory DeClue’s expert opinion. Dr. DeClue’s expert opinion is also based on the results of psychological testing which did not exist in 1982. The State also describes Floyd’s newly-discovered evidence of additional hairs at Robinson’s crim e scen e and the DNA testin g of those hairs as “absurd” because it is “patently obvious” that African -Am erican hairs could not belong to Floyd, who is white. At trial, however, it appeared the only hair discovered at the Robinson crim e scen e was the head hair found on the blue knit cap—there was no m ention of hair on the sem enstained tissue, on Robinson’s bloody bed sheets, or on an envelope found in Robinson’s room . In addition, Floyd’s DNA testing does m ore than m erely exclude Floyd as the source of the hairs; it points to a n ew, albeit unidentified, suspect because the hairs cam e from two different African -Am erican m en: one presum ably Robinson, and the other a m an who was in his bed at som e point before his death. 230 See House, 547 U.S. at 548 -49 229 Floyd Exhibit 45 at 174. 230 Floyd Exhibit 18. 46 (finding actual in nocence when petitioner’s newly-discovered evidence pointed to a different suspect). Regardless of the State’s opinion of what evidence is “new” enough, if Floyd has presented any “new reliable evidence,” which he has, the Court “m ust consider all the evidence, old and new , incrim inating and exculpatory, without regard to whether it would necessarily be adm itted under rules of adm issibility that govern at trial.” Id. at 537-38 (em phasis added). B. Th e Co m bin e d N e w an d Old Evid e n ce Exclu d e s Th e Po s s ibility Th at Flo yd Kille d Ro bin s o n in th e Ma n n e r D e s cribe d in h is Co n fe s s io n a n d Stro n gly Su gge s ts th at Flo yd D id N o t Kill Ro bin s o n At All. The physical eviden ce found at the scene of Robinson’s death excludes the possibility that Floyd killed Robinson in the m anner described in his confession. The sam e evidence strongly suggests that Robinson was not killed by Floyd, and was instead killed by an African-Am erican m an with type A blood shortly after Robinson and the m an had sex. In his confession, Floyd states that he “wiped [his] dick with a pi[e]ce of paper and threw it on the floor.”231 Detective Rice testified at trial that he was “positive” Floyd said this. 232 The statem ent m atches the physical evidence as detectives found it on the scene: a tissue stained with sem inal fluid was found next to the bed. 233 Forensic an alysis, however, excludes the possibility that the sem inal fluid belonged to either Floyd or 231 Floyd Exhibit 9 at 2 232 Floyd Exhibit 45 at 10 9. 233 Floyd Exhibit 3 at 5. 47 Robinson. The sem inal fluid was produced by a m an with type A blood; 234 Floyd has type B blood, 235 and Robinson had type O blood. 236 The conclusion that the tissue was not used by Floyd is further bolstered by new evidence that hairs found on the tissue do not belong to Floyd, but are rather African Am erican in origin. 237 This fact alone dem onstrates that Floyd’s confession is inconsistent with the evidence found at the Robinson scen e and therefore does not accurately describe the circum stan ces surrounding Robinson’s death. A second clear factual inaccuracy in the Robinson confession involves Floyd’s visit to Charity Hospital. Robinson was killed at approxim ately 4:35 a.m . on Novem ber 28, 198 0 . 238 In his confession, Floyd describes his actions im m ediately following the m urder: After I left the hotel I ran to Bourbon Street. I talk [sic] to this guy, I don’t know his nam e. I was talking to him about the killings and I told him I had just killed a dude. I asked him for help and he took m e to Charity Hospital to the Detoxification Center and then left. 239 This passage plainly suggests that Floyd went to Charity Hospital on the m orning of the 28 th, im m ediately following the m urder. This account superficially m atches what Harold Griffen told detectives m onths earlier: Floyd spoke about Robinson’s m urder during a 234 Floyd Exhibit 45 at 197. 235 Id. 236 Id. at 213. 237 Floyd Exhibit 16 at 2; Floyd Exhibit 15 at 5. 238 Floyd Exhibit 2 at 1. 239 Floyd Exhibit 9 at 2. 48 walk from Bourbon Street to Charity Hospital. 240 In reality, however, Hospital records obtained by Floyd’s trial attorney confirm that Floyd was adm itted to Charity over 24 hours after the m urder, on the m orning of Novem ber 29. 241 The rem ain ing physical evidence casts further doubt on Floyd’s confession and other alleged inculpatory statem ents. Medical technologist Daniels testified that a swab of Robinson’s rectum tested positive for sem inal fluid. 242 The fluid was produced by a m an with type A blood. 243 According to Daniels, that the swab an d sm ear tested positive indicated that the specim en was “relatively fresh”—at m ost only “a couple of hours” old. 244 Hennessey, Robinson’s friend, told police that Robinson left Hennessey’s hom e in the Lakeview neighborhood of New Orleans at 3:15 a.m ., approxim ately 8 0 m inutes before his death. 245 The physical evidence therefore conclusively dem onstrates that Robinson had sex with a type A m an within hours of his death, and—because the tissue was found in Robinson’s room —suggests to a level of near certainty that the sex occurred in Robinson’s room . Furtherm ore, crediting Hennessey’s account, the sexual en counter with a m an other than Floyd occurred less than 80 m inutes before Robinson’s death. Hair and fingerprint evidence found at the scene—m uch of it new evidence unavailable to the trial court—strengthens the inference that som eone other than Floyd 240 Floyd Exhibit 3 at 4. 241 Floyd Exhibit 45 at 48. 242 Id. at 213. 243 Id. at 215-16. 244 Id. at 213. 245 Floyd Exhibit 4 at 10 ; Floyd Exhibit 3 at 2-3; R. Doc. 1 at 29 n.11. 49 killed Robinson. None of the considerable forensic evidence found on the scene could have been produced by Floyd. Fingerprints found on drinking glasses in Robinson’s room and on the passenger side of Robinson’s car did not m atch Floyd’s, Hennessy’s, or Robinson’s. 246 A DNA test revealed that hairs found on the tissue, bed sheets, and envelope in Robinson’s room are not attributable to Floyd. 247 The hairs were rather produced by two different African-Am erican m en. 248 Perhaps m ost com pellingly, the knit cap found by police contained type O blood, m atching Robinson, and hairs from an African-Am erican m an other than Robinson. 249 The cap was found approxim ately ninety feet from Robinson’s body, and was recovered further down the hallway from Robinson’s room than the body. 250 In other words, Robinson collapsed before he reached the point where the cap was found. This fact, com bined with the type O blood an d hairs on the cap, strongly suggests that the cap was worn by the killer, rather than Robinson, and that the killer was African Am erican. This inference is further supported by the account of hotel security guard Gladys McKin ney. McKinney described an African-Am erican m ale with short hair running from the prem ises with his right hand in his pocket and looking back as if he was being followed. 251 246 Floyd Exhibit 13 at 3 247 Floyd Exhibit 15 at 5. 248 See id. 249 Floyd Exhibit 3 at 6; Floyd Exhibit 10 . 250 Floyd Exhibit 45 at 157-56; Floyd Exhibit 6 at 13. 251 Floyd Exhibit 4 at 11-12. 50 According to the police report, Detective Rice believed at the tim e that “McKinney witnessed the perpetrator of the Robinson Murder m aking good his escape.”252 To explain the eviden ce suggesting that a m an other than Floyd was in Robinson’s room before the m urder, the Magistrate J udge theorized that som eone else’s presen ce in Robinson’s room “in no way precludes petitioner’s presence at a different tim e”253 This “different tim e” theory is difficult to square with the evidence and Floyd’s confession. As noted above, the physical evidence and Hennessey’s account strongly suggest that Robinson had sex with a m an with type A blood in his room less than 80 m inutes before his death. As a result, for Floyd’s confession to be truthful, the following sequence of events would need to have occurred over the span of those 8 0 m inutes: 1) Robinson leaves Hennessey’s hom e in the Lakeview neighborhood of New Orleans, drives back to the Fairm ont, parks his car nearby, and returns to his room ; 2) Robin son undresses and has anal sex in his room with a m an with type A blood; 3) Robinson dresses, leaves his room , returns to his car, and drives to Bourbon Street; 4) Robinson parks his car an d walks to a bar, where he m eets Floyd; 254 5) the two m en talk, and then go to the Pubb bar at the corner of Saint Ann and Bourbon Streets; 255 6) the two m en stay in the Pubb bar for “a little while,” and then walk to another bar and get a drink; 256 7) the two m en walk to 252 Id. at 12 253 R. Doc. 67 at 11. 254 Floyd Exhibit 9 at 2. 255 Id. 256 Id. 51 Robinson’s car, drive back to the Fairm ont, park near the hotel on Com m on Street, 257 and walk to Robinson’s room on the tenth floor; 258 8) Robinson undresses and Floyd uses the bathroom ; 259 9) Floyd partially undresses, and Robinson perform s oral sex on Floyd; 260 10 ) Floyd wipes him self with a tissue, 261 11) Floyd stabs Robinson m ultiple tim es an d the two m en struggle, 12) Robinson staggers out of the room and into the hallway, walking several feet before he collapses and dies. 262 Com pleting this sequence in the tim e allotted appears im plausible, but even assum ing that Robinson could have done all this in 80 m inutes, the “different tim e” theory cannot explain the absence of Floyd’s sem en on the tissue, the African-Am erican hairs and type O blood found on the knit cap, or McKinn ey’s account of the fleeing African-Am erican m an. In short, the considerable physical eviden ce discovered at the scen e of Robinson’s death, in cluding evidence never presented to the trial judge, both contradicts key details of Floyd’s confession and strongly suggests that Floyd did not m urder Robinson. C. Th e Co m bin e d N e w a n d Old Evid e n ce Gre atly U n d e rm in e s th e Pe rs u as ive W e igh t o f Flo yd ’s Co n fe s s io n an d Evid e n ce o f h is Bo as t in th e H in e s Mu rd e r. As was true of the Robinson scene, there is no physical evidence lin king Floyd to the Hin es scen e. Instead, as with Robinson, hairs recovered from Hines’ bedsheets place 257 Floyd Exhibit 4 at 10 . 258 Floyd Exhibit 9 at 2. 259 Id. 260 Id. 261 Id. 262 Id. 52 an African-Am erican person in Hines’ bed som e tim e before the m urder. 263 The only other forensic evidence found on the scen e, excepting Hines’ own blood, was a num ber of fingerprints on a whiskey bottle discovered on Hines’ kitchen table. 264 These prints m atched neither Floyd nor Hines, 265 further confirm ing the presence of another person in Hin es’ hom e som etim e before his death. Because of the dearth of physical eviden ce linking him to the crim e, Floyd was, as noted by the Magistrate J udge, convicted of m urdering Hines based only on his selfincrim inating statem ents—his confession to Detective Dillm an, and his alleged threat to Steven Edwards. As a result, the State’s case rises and falls with these two pieces of eviden ce: if no reasonable, properly instructed juror would conclude that this evidence is persuasive enough—on its own—to elim inate any reasonable doubt that Floyd m urdered Hines, then Floyd’s untim eliness is excused based on a showing of actual innocence. Floyd subm its several pieces of newly-discovered eviden ce that he contends undercuts the reliability of his inculpatory statem ents and the credibility of police testim ony at his trial. See House, 547 U.S. at 538 -39 (“If new evidence so requires, [an actual innocence claim ] m ay include consideration of the credibility of the witnesses presented at trial.” (quoting Schlup, 513 U.S. at 330 )). This new evidence—com bin ed with the old and new evidence from the Robinson scene—significantly underm ines the persuasive weight of Floyd’s confession an d alleged boasting. 263 Floyd Exhibit 40 . 264 R. Doc. 13 at 1, 3; Floyd Exhibit 80 at 11-13. 265 R. Doc. 13 at 3. 53 1. Th e Cre d ibility o f th e Tw o Co n fe s s io n s is In te rtw in e d . Despite Floyd’s alleged boasts and his confession to the Robinson m urder, the physical eviden ce at the Robinson scene, as n oted above, strongly suggests that Floyd did not m urder Robinson at all. Furtherm ore, undisputed evidence directly contradicts crucial and detailed elem ents of Floyd’s story: Floyd’s claim that he wiped him self with a piece of paper after ejaculating and threw the paper on the floor, and his claim that he went to Charity hospital after killing Robinson. Floyd’s confession to the Robinson m urder is closely linked with his confession to the Hines m urder. The two statem ents were taken one after the other, and the two accounts feature striking sim ilarities. 266 For instance, the Hin es confession states, “I went to the bathroom and when I cam e back, he was naked in the bed.”267 The Robinson confession states, “I think I went to the bathroom and I think by the tim e I got out of the bathroom he had his cloths [sic] off.”268 The Hines confession: “We both got into bed and we had sex. Then he told m e that he wanted to fuck m e and I went crazy. . . . I went berserk.”269 The Robinson confession: “He told m e he wanted [to] fuck m e and thats [sic] when I went berserk.”270 The Hines confession: “I had a knife in m y boot and I stabbed 266 R. Doc. 1 at 46-47 (charting the sim ilarities between the two confessions). According to police testim ony, the officer officially taking the statem ent transcribed what Floyd said as he spoke. Floyd Exhibit 45 at 111 (“I would ask the defendant a question, type the question, receive his answer, and then type the answer in it.”). 267 Floyd Exhibit 8 at 4. 268 Floyd Exhibit 9 at 2. 269 Floyd Exhibit 8 at 3, 5. 270 Floyd Exhibit 9 at 2. 54 him a bunch of tim es. Then I ran out of the house and I went back down on bourbon st. [sic] too [sic] the bar.”271 The Robinson confession: “[I] pulled m y knife from m y left boot and started stabbing him . . . . I pulled m y pants up and ran out the room . . . . After I left the hotel I ran to Bourbon Street.”272 Even discounting the sim ilarities between the confessions, and that they were obtained together, a reasonable fact finder would conclude that the persuasiveness of the two statem ents is intertwined. If Floyd was willing—for whatever reason—to falsely confess to one m urder, it is far m ore likely that his other confession is false as well. The considerable eviden ce tending to underm in e the Robinson confession, therefore, also serves to undercut the Hines confession. 2. Flo yd ’s N e w Evid e n ce Fu rth e r U n d e rcu ts th e Pe rs u as ive W e igh t o f th e H in e s Co n fe s s io n . The persuasive weight of Floyd’s confession to the Hines m urder is further eroded by Floyd’s new evidence of his own vulnerability to coercion, and evidence suggesting that Detective Dillm an coerced a confession by beating a suspect in another case. In support of his claim ed vulnerability, Floyd presents the expert opinion of Dr. Gregory DeClue. Dr. DeClue concludes that Floyd’s deficient cognitive ability m akes him “extrem ely vulnerable” and “extrem ely susceptible” to police pressure or influence. 273 In J une 20 0 9, Dr. DeClue determ ined that Floyd had a full-scale IQ of 59, which places Floyd in the 271 Floyd Exhibit 8 at 3. 272 Floyd Exhibit 9 at 2. 273 The State has not argued that Dr. DeClue’s opinion or m ethodology is in any way unreliable to the point of inadm issibility, and a review of his CV, report, affidavit, and testim ony, reveals he is well-credentialed. 55 bottom 0 .3 percentile of all adults. 274 At Floyd’s post-conviction evidentiary hearing in state court, Dr. DeClue testified that the “cutoff for m ental retardation is, typically, set at 70 .”275 Floyd’s cognitive abilities in other areas, like verbal com prehension, perceptual reasoning, working m em ory, and processing speed, were all in the “Mentally Deficient (Mentally Retarded) range.”276 Floyd tested highest in perceptual reasoning, where he scored a 71. 277 See generally Steven A Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DN A W orld, 82 N.C.L. Rev. 891, 971 (20 0 4) (noting that “[t]he unique vulnerability of the m entally retarded to psychological interrogation techniques and the risk that such techniques when applied to the m entally retarded m ay produce false confessions is well-docum ented in the false confession literature”). Dr. DeClue noted that Floyd’s scores on the Woodcock-J ohnson Tests of Achievem ent-III were com parable to those of a seven- or eight-year-old child. Dr. DeClue also em phasized that Floyd reported “with som e pride” that his skills in these areas have increased since he has been incarcerated over the last twenty years. 278 The State argues that Dr. DeClue’s expert opinion on Floyd’s m ental deficiency is unpersuasive because “Floyd clearly had the m ental acuity to craft an alibi defense . . . as well as to concoct a story about having been beaten into confessing.”279 The State 274 Floyd Exhibit 20 at 3. 275 Floyd Exhibit 47 at 45. 276 Floyd Exhibit 20 at 3. 277 Id. 278 Floyd Exhibit 47 at 47. 279 R. Doc. 63 at 9. 56 em phasizes that Floyd’s testim ony “stretched for 10 0 transcribed pages.”280 The State’s argum ent is circular because it assum es Floyd’s guilt: if Floyd is innocent then he need not have the ability to “concoct” a story at all. Furtherm ore, a review of Floyd’s testim ony reveals that the State’s characterization of his testim ony as “cogent and coherent” is generous. At trial, Floyd often appeared confused and had difficulty expressing him self when answering straightforward questions. 281 Dr. DeClue also found that, in addition to exhibiting m ental deficiency, Floyd is highly suggestable. Floyd’s test scores on the Gudjonsson Suggestibility Scale and Gudjonsson Com pliance Scale indicate that Floyd “yield[s] to m isleading questions,” “shift[s] answers . . . in response to subtle pressure,” and “com pl[ies] with interpersonal pressure from authority figures” m ore than the average person would. 282 See also Eugene R. Milhizer, Confessions After Connelly : An Evidentiary Solution for Excluding Unreliable Confessions, 81 Tem p. L. Rev. 1, 14 (20 0 8) (“Certain characteristics com m on am ong m entally retarded persons m ake them particularly prone to confess falsely. For exam ple, m entally retarded suspects are often m otivated by a strong desire to please authority figures, even if to do so requires them to lie and confess to a crim e that they did not com m it.”). According to Dr. DeClue, all of Floyd’s test results support the conclusion 280 Id. 281 For exam ple, the prosecutor, defense counsel, and the court repeatedly asked Floyd to clarify whether when he said that his bus to New Orleans on Novem ber 25, 1980 , arrived at “1:0 0 a.m .” m eant one o’clock in the m orning or the afternoon. When asked if he arrived in the afternoon, Floyd responded affirm atively. When asked if he arrived at “1:0 0 a.m .,” Floyd responded affirm atively. Floyd Exhibit 45 at 30 2-30 4. 282 Floyd Exhibit 20 at 4-5. 57 that Floyd is highly suggestible. 283 Dr. DeClue also ruled out the possibility that Floyd was faking his cognitive abilities or otherwise distorting the results on which Dr. DeClue relied. 284 Floyd’s eviden ce that he was vulnerable to coercion is particularly relevant given Floyd’s consistent allegations that he was beaten before he gave his confession. See State v. Trudell, 350 So. 2d 658, 662 (La. 1977) (finding when defendant had “an I.Q of about 60 , or a m ental age of about nine years . . . and was easily led and very suggestible . . . the state had a heavy burden of proving, beyond a reasonable doubt that [defendant’s] confession was voluntary . . . trustworthy and the product of a free and rational choice”). At trial, Floyd testified that Detective Dillm an “slapp[ed Floyd] on the side of the head,” 285 “kick[ed Floyd] on the side of the head with his boots,” 286 “knock[ed Floyd] off his chair on[to] the floor,”287 and “threatened to put [Floyd’s] head through the brick wall and throw [Floyd] out through the window.”288 Floyd’s trial testim ony is supported by new eviden ce regardin g Detective Dillm an’s treatm ent of another suspect. In State v. Sew ard, the Louisiana Suprem e Court found that the defendant had preponderantly established that he was beaten by Detective Dillm an during his interrogation. 50 9 So. 2d 413, (La. 1987). Seward’s description of his beating was sim ilar to Floyd’s—Detective 283 Floyd Exhibit 47 at 50 . 284 Id. at 42-44, 76; accord Floyd Exhibit 20 at 2. 285 Id. 286 Id. at 272. 287 Id. 288 Id. at 271-72. 58 Dillm an “repeatedly hit him in the head, kicked and hit him in the chest and back, pushed him to the floor, and placed a plastic bag over his head. The officers also allegedly threatened, swore and scream ed at Seward in an effort to elicit a confession.” Id. at 415, n.5. The State correctly argues that the Louisiana Suprem e Court’s finding, under a preponderance of the eviden ce standard, that Detective Dillm an coerced a confession in another case is far from conclusive on its own. But “a brick is not a wall,” and eviden ce of Detective Dillm an’s treatm ent of Seward supports Floyd’s allegation of physical abuse an d further erodes the persuasive weight of Floyd’s confession. 3. Th e Evid e n ce U n d e rm in e s th e State ’s Argu m e n t th a t Flo yd ’s Co n fe s s io n is Re liable Be cau s e Flo yd Vo lu n te e re d Sp e cific In fo rm atio n Abo u t th e Sce n e . At trial, the State attem pted to bolster the credibility of Floyd’s confessions by presenting eviden ce that Floyd volunteered specific details about both crim e scenes. This argum ent is weakened, however, by the substantial eviden ce that detectives, knowingly or otherwise, provided Floyd with significant inform ation about the crim e scen es during the com bined interrogation. Perhaps m ost notably, Floyd’s statem ent regarding the tissue in the Robinson case m atches the physical evidence as perceived by detectives at the tim e of interrogation—after the tissue had been discovered but before the blood type had been com pared to Floyd’s—but not the scene as it actually existed. In other words, Floyd’s apparent knowledge of this key detail at the tim e of his confession went only as far as what detectives already “knew,” even when that supposed knowledge would later be contradicted by forensic analysis. See Garrett, supra, at 10 59 (“[U]nless interrogations are recorded in their entirety, courts m ay not detect contam ination of facts . . . .”). 59 Sim ilarly, Floyd’s confession about the position of Hines’s body appears to accurately describe a crim e scene photo, but not the scene as actually found by police. In the relevant photo, Hines’s whole body is shown lying on the right side of his bed 289 and Floyd’s confession states, “[h]e fell on the floor next to the bed. I got dressed and when I left he was still lying there.”290 But, as Detective Dillm an testified at trial, Hines’s “legs were actually underneath the bed and [police] had to pull the body out from it to check the body for signs of injuries.”291 Detective Dillm an stated that the photograph depicted Hines’s body after it had already been m oved because the photograph shows “the body . . . directly on the floor on the right-hand side of the bed.”292 Floyd’s description of a crim e scen e photo rather than the scen e itself m ay be explain ed by Detective Dillm an adm ission, m ade only after Floyd’s conviction, that in order to “crack” Floyd, he showed Floyd photos of Hines’s dead body before Floyd confessed. 293 This adm ission blunts the effect of Detective Dillm an’s testim ony that Floyd: 289 See Floyd Exhibit 41. 290 Floyd Exhibit 8 at 5. 291 Floyd Exhibit 45 at 92. 292 Id. at 93. 293 Floyd Exhibit 38 at 192 (“I selected two of the grisliest shots: one depicting m ultiple stab wounds, the sm eared, dried blood everywhere on the victim ’s body . . . .”); accord Floyd Exhibit 11 at 9-10 (“I spent hours with him . . . . Finally we got to the point, I think what finally broke him was I showed him som e of the scene photographs . . . .”) 60 described the scene . . . vividly. He rem em bered the iron gate. 294 He was able to describe the position of the victim ’s body. He was able to describe to m e the outlay of the victim ’s apartm ent, even to detail the position of the body where it fell off the bed. 295 Detective Dillm an further stated that Floyd “was able to describe the victim ’s residen ce and the surrounding area perfectly, the inside of the residence, the living room , the desk, the bedroom , even the position of the victim ’s clothing,” which, according to Detective Dillm an, Floyd said was “on the chair in the bedroom .”296 But Floyd’s confession, which Detective Dillm an said he contem poraneously transcribed, 297 says nothing about the location of Hines’s clothing. Rather, when asked whether he recalled what Hin es did with his clothing, Floyd responded “I undressed and placed m y cloths [sic] on the bed. Then I put them on a chair. I went to the bathroom and when I cam e back, he [Hines] was naked in the bed.”298 Sim ilarly, Floyd’s supposed ability to describe the “residence and surrounding area perfectly”299 is not reflected in the confession. According to that docum ent, when asked if he could “furnish . . . a description of the Hin es residen ce,” Floyd responded: “All I rem em ber, is that it was on Gov. Nicholls st [sic], near the river.” Detective Dillm an inquired further, asking “[d]o you recall the interior of the 294 On this point, Floyd’s confession says only: “We went throught [sic] a gate an d into his apartm ent.” Floyd Exhibit 8 at 3. 295 Floyd Exhibit 45 at 10 8. 296 Id. at 10 8-0 9. 297 Id. at 111. 298 Floyd Exhibit 8 at 4. 299 Floyd Exhibit 45 at 10 8. 61 residence?”30 0 Floyd answered: “All I rem em ber was that there was a living room and a bedroom .”30 1 Finally, J ohn Rue Clegg’s recent statem ent casts further doubt on both Floyd’s guilt and Detective Dillm an’s investigative practices. As noted above, Clegg’s recent affidavit alleges that, in contrast to Detective Dillm an’s representations both in the police report and at trial, Clegg never stated that Hines “frequently had sexual relations with both black and white m ales.”30 2 Rather, Clegg, according to his affidavit, told Detective Dillm an that “Bill’s taste was for black m en.”30 3 Clegg, as noted above, is a friend of Hin es’s and an apparent stranger to Floyd, an d has lived in Germ any since 1970 . He appears to have little reason to concoct a story on Floyd’s behalf, and his credible account therefore provides an additional reason to doubt Detective Dillm an’s reliability. Furtherm ore, Clegg’s statem ent regarding Hines’s preferen ces suggests that an African-Am erican m an, rather than Floyd, killed Hines. This inference is supported by the striking sim ilarities between the Robinson and Hin es m urders and the overwhelm ing evidence that Robinson was killed by an African-Am erican m an. 30 4 It is further strengthened by the forensic 30 0 Floyd Exhibit 8 at 4. 30 1 Id. 30 2 Floyd Exhibit 3 at 6. 30 3 Floyd Exhbit 21 at 2. 30 4 Indeed, State actors have consistently taken the position that Robinson and Hines were killed by the sam e person. This assum ption anim ated the early investigation. See, e.g., Floyd Exhibit 3 at 5 (“It becam e evident to the investigating detectives . . . that the sam e person m ight possibly be responsible for the deaths of both victim s.”); Floyd Exhibit 11 at 4 (“As soon as I walked into [the Robinson] crim e scene I knew again from intuition and working these cases year in and year out I knew that we had the sam e perpetrator.”). Detective Dillm an appears to have m aintained this belief. Throughout his 1998 interview with J upiter Entertainm ent, Detective Dillm an noted 62 eviden ce at the Hin es scene: African-Am erican pubic hair recovered from Hines’s bed 30 5 and fingerprints that m atched neither Floyd nor Hines on the whiskey bottle in Hines’s kitchen. 30 6 4. Flo yd ’s Alle ge d State m e n t to Ste ve n Ed w ard s is s im ilarly u n re lia ble . As noted above, the only evidence corroborating Floyd’s confession to Detective Dillm an is his alleged adm ission to Steven Edwards. Floyd allegedly told Edwards, owner of the Mississippi River Bottom Bar, that he had killed a person. 30 7 When Edwards suggested Hin es’ nam e, Floyd responded “Yeah, on Governor Nichol[l]s.”30 8 Like the confession evidence, the persuasiveness of Floyd’s alleged boast to Edwards is affected by the presence of sim ilar eviden ce in the Robin son case. In that case, Reed, an acquaintance of Floyd’s, testified that Floyd once threatened to “take care of [Reed] like he did the one at the Fairm on t.”30 9 Floyd was apparently referring to that Floyd’s “rage” and poor judgm ent “cost two people their lives.” Floyd Exhibit 11 at 9, 12. Detective Dillm an also com m ented, “there’s no doubt in m y m ind that he was responsible for both, but since we convicted him of the first case you know he is given life[. H]e just would have been given double life.” Id. at 11; see also Floyd Exhibit 38 at 253 (“[T]he Rodney Robinson case gathers dust in Hom icide’s bottom drawer, technically an ‘open’ in vestigation, but no officer who worked it believes the m atter unsolved.”). When Floyd appeared before the Louisiana Pardon Board in 1995, thenDistrict Attorney Harry Connick wrote a letter “strongly urg[ing] that [Floyd’s] request for clem ency be denied” because Floyd “m urdered Rodney Robinson” and “took the life of two innocent victim s in cold blood.” Floyd Exhibit 12. 30 5 Floyd Exhibit 40 . 30 6 Floyd Exhibit 13 at 3. 30 7 Floyd Exhibit 45 at 55-56 30 8 Id. 30 9 Id. at 75 63 Robinson, who was killed at the Fairm ont Hotel. If a reasonable juror concluded that Floyd did not kill Robinson, the juror would be forced to conclude that Floyd’s statem ent to Reed was also false—either Floyd was falsely boasting or Reed’s retelling of the out of court statem ent is unreliable. J ust as with the two confessions, the sim ilarity of this boast to the Edwards threat links the two statem ents’ persuasive weight: if Floyd falsely boasted of killing Robinson, it is m ore likely that his claim to killing Hines was fabricated as well. The doubt engen dered by the evidence in the Robinson case is com pounded by Edwards’s inconsistent testim ony regarding Floyd’s alleged statem ent. At trial Edwards insisted that after Floyd said he had killed som eone, 1) Edwards suggested Hines’s nam e, and Floyd agreed; 310 and 2) Floyd offered further detail, by confirm ing that the m urder occurred on Governor Nicholls Street. 311 At a pre-trial evidentiary hearing conducted several m onths earlier, however, Edwards’s testim ony differed. According to this earlier account, Floyd, after being told he was barred from entering Edwards’s bar, said: “Well, don’t get m e ruffled.” [Floyd] said som ething to the point, “I already wasted one guy,” or som ething, and I read it in the paper. I said, “Are you talking about the guy around the corner?” And he said, “Yeah.” And that was the extent of our conversation. I said, “You know you cannot go into the bar. You are barred. You have to stay out of it.”312 Edwards was then asked if anyone “ever call[ed] the nam es of any individuals during that conversation.”313 Edwards an swered: “If we did, I m ight have m entioned Bill, and then 310 Id. at 55-56, 71-72. 311 Id. at 58. 312 Floyd Exhibit 75 at 44. 313 Id. 64 later when I read in the paper it was Bill Hin es. Bill had been into m y bar once or twice.”314 Edwards further testified that he “didn’t even think about” Floyd’s statem ents because “[t]hat happens in the barroom business a lot . . . . People com e in and say things, ‘I beat the piss out of this guy down the street.’ I brush it off. I just let it go . . . . [S]om etim es it’s true and som etim es it’s not.”315 Finally, Dr. DeClue’s findings provide further insight into the credibility of Floyd’s alleged boast. Edwards consistently states that he, rather than Floyd, raised Hines—or “the guy around the corner”—as the person that Floyd “wasted.” Given Floyd’s suggestibility and overall m ental acuity, that Edwards rather than Floyd allegedly suggested Hin es’ nam e takes on additional significance. D. N o Re as o n a ble , Pro p e rly In s tru cte d J u ro r W o u ld Like ly Vo te to Co n vict Flo yd o f Mu rd e rin g H in e s Bas e d o n On ly H is Co n fe s s io n an d Alle ge d Bo as t Viewing all of the evidence here—both new and old, exculpatory and inculpatory— the State’s case against Floyd for the m urder of Hines is tenuous. The Court finds, as an initial m atter, that any reasonable juror presented with the Robinson m urder evidence would conclude that it is highly unlikely that Floyd killed Robinson . The Court further finds that this conclusion would inform the juror’s evaluation of the State’s only evidence in the Hines m urder—the confession and statem ent to Steven Edwards. A confession is generally powerful evidence, and juries m ay be persuaded to convict on the basis of only a confession. See Murray v. Earle, 40 5 F.3d 278, 295 (5th Cir. 20 0 5) (quoting Drizin & Leo, supra, at 923). But, even discounting the shadow cast by the sim ilar Robin son 314 Id. 315 Id. at 45-46. 65 confession, the specific confession at issue in this case is unreliable for the m any reason s outlined above. Floyd’s alleged drunken boasting provides sim ilarly thin eviden ce of Floyd’s guilt. When further discredited by their association with the Robin son eviden ce, Floyd’s flawed confession and dubious boast, standing alone against significant exculpatory evidence, are insufficient to expel all reasonable doubt from the m ind of a reasonable juror. In his recom m en dation, the Magistrate J udge correctly articulated the relevant legal standard and ably applied it. Nonetheless, this Court disagrees with two of the Magistrate J udge’s core findings. First, as noted above, the Court finds that the Magistrate J udge’s “different tim e” theory cannot explain the overwhelm ing evidence that an African-Am erican m an, rather than Floyd, killed Robinson. Second, and relatedly, the Magistrate J udge’s recom m endation appears to exaggerate the persuasiveness of Floyd’s inculpatory statem ents in the m ind of a reasonable juror. Although the Magistrate J udge is no doubt correct that confessions are “com pelling eviden ce of guilt, perhaps especially in the m in d of lay jurors,”316 this Court finds that Floyd’s confession to the Hin es m urder— as discredited by its association with the false Robinson confession, Floyd’s vulnerability, and eviden ce of Detective Dillm an’s im proper interrogation techniques—is an especially unreliable confession. Although lay jurors m ay find the average confession com pelling, the Court m ust m ake a “probabilistic determ ination” concerning a hypothetical juror’s opinion of the specific statem ents at issue in this case. House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 299). For the reasons offered above, the Court finds that such a juror would not find Floyd’s confession or alleged boast to be com pelling evidence of guilt. 316 R. Doc. 67 at 12. 66 Accordingly, the Court concludes that any reasonable, properly instructed juror, evaluating this case with the requisite caution and care, would reasonably doubt Floyd’s guilt of the m urder of William Hines. Proof beyond a reasonable doubt is proof that leaves a juror “firm ly convinced of the defendant’s guilt.” Federal J udicial Center, Pattern Crim inal J ury Instructions (1987); United States v. W illiam s, 20 F.3d 125, 129 n.2 (5th Cir. 1994) (approving the FJ C instruction on reasonable doubt). It is unlikely that any reasonable juror would find that the State’s m urder case rises to this dem anding standard. Floyd has therefore preponderantly established that no reasonable juror, after carefully and im partially considering all of the evidence, would find him guilty beyond a reasonable doubt. V. CON CLU SION Because Floyd has satisfied the standard n ecessary to overcom e the untim eliness of his habeas petition, the Court rem ands Floyd’s petition to the Magistrate J udge for an evaluation on the m erits. 14th New Orleans, Louisiana, this _ _ _ _ day of Septem ber, 20 16. ____________________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 67

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