Griner v. Kent, et al

SCOTT D. JOHNSON
UNITED STATES MAGISTRATE JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JEREMY GRINER (#607602) 	CIVIL ACTION NO.
VERSUS 	23-153-SDD-SDJ
JASON KENT, ET AL.
NOTICE
Please take notice that the attached Magistrate Judge’s Report has been filed with the Clerk
of the U. S. District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the
attached report to file written objections to the proposed findings of fact, conclusions of law, and
recommendations set forth therein. 	Failure to file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being served will bar you, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and
legal conclusions accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE
WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT.
Signed in Baton Rouge, Louisiana, on February 25, 2026.
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JEREMY GRINER (#607602) 	CIVIL ACTION NO.
VERSUS 	23-153-SDD-SDJ
JASON KENT, ET AL.
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Before the Court is a Petition Under 28 U.S.C. §2254 for Writ of Habeas Corpus by a
Person in State Custody1 filed by Jeremy Griner, who is representing himself and who is confined
at the Dixon Correctional Institute in Jackson, Louisiana. As Griner’s sole claim is procedurally
defaulted, it is recommended that Griner’s request for habeas relief be denied, that this matter be
dismissed with prejudice, and that, if sought, a certificate of appealability be denied. There is no
need for oral argument or an evidentiary hearing.
I. 	PROCEDURAL H ISTORY
On February 24, 2017, Griner was charged with attempted second degree murder in
violation of Louisiana Revised Statutes 14:27 and 14:30.1.2 On July 19, 2018, Griner was found
guilty by a unanimous jury.3 	On August 20, 2018, Griner was sentenced to 20 years with the
Department of Corrections at hard labor, without the benefits of probation, parole, or suspension
of sentence, with credit for time served. On January 8, 2019, after finding that the State had carried
its burden in demonstrating that Griner was a habitual offender, the Court vacated the original
1 R. Docs. 1, 3, & 7.
2 R. Doc. 13-1, p. 31.
3 R. Docs. 13-2, p. 110; 13-6, pp. 129-131.
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sentence and sentenced Griner to 25 years with the Department of Corrections with hard labor to
be served without the benefit of probation, parole, or suspension of sentence.4
Griner filed a direct appeal urging five assignments of error: (1) erroneous jury instructions;
(2) erroneous imposition of the original sentence immediately after the denial of post-trial motions;
(3) excessive sentence; (4) failure to comply with sentencing guidelines; and (5) ineffective
assistance of counsel.5 On September 27, 2019, the First Circuit Court of Appeals affirmed the
conviction, habitual offender adjudication, and sentence.6 Griner then sought a writ of certiorari
from the Louisiana Supreme Court, which was denied on July 24, 2020.7 Griner filed an application
for post-conviction relief on March 22, 2021, raising many assignments of error.8 Griner’s PCR
review ended on November 16, 2022, with the Louisiana Supreme Court denying review.9 Griner
then instituted this action assigning only one error: erroneous jury instructions.10
II. 	G RINER’ S SOLE C LAIM IS PROCEDURALLY D EFAULTED
Respondent argues and is correct that Griner’s claim is unexhausted.11 The First Circuit
refused to consider the erroneous jury instruction issue stating that because Griner’s “trial counsel
failed to object to the trial court’s erroneous instruction…[Griner] is precluded from raising this
issue on appeal.”12 In other words, review of the claim was procedurally barred because it was not
4 R. Docs. 13-1, p. 25; 13-2, p. 111.
5 R. Doc. 9-5, pp. 8-33; State v. Griner, 2019-0322 (La. App. 1st 9/27/2019) 2019 WL 4731973, at *1.
6 R. Doc. 13-7, p. 104-117.
7 R. Doc. 13-7, p. 119.
8 R. Doc. 13-6, p. 166.
9 R. Doc. 13-6, p. 274.
10 R. Doc. 1, p. 4.
11 R. Doc. 15, pp. 4-5.
12 Griner, 2019 WL at *3.
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preserved for appellate review by a contemporaneous objection at trial as required by La. Code
Crim. P. art. 841. 13 As a threshold matter, this Court must determine whether procedural default
has occurred on the asserted claim.
“If a state court clearly and expressly bases its dismissal of a prisoner’s claim on a state
procedural rule, and that procedural rule provides an independent and adequate ground for the
dismissal, the prisoner has procedurally defaulted his federal habeas claim.”14 Griner’s erroneous
jury instruction claim was denied on procedural grounds both on direct appeal and on PCR. On
direct appeal, the First Circuit clearly declined to consider Griner’s erroneous jury instruction
claim based upon a state procedural rule, so as long as the state procedural rule provides an
independent and adequate ground for dismissal, the claim is procedurally defaulted. A dismissal
is independent of federal law when the last state court “clearly and expressly” indicated that its
judgment rests on a state procedural bar.15 In addition, it also is well settled that “[a] state court
expressly and unambiguously bases its denial of relief on a state procedural default even if it
alternatively reaches the merits of a [petitioner’s] claim.”16 Here, the First Circuit clearly stated
that Griner was precluded from raising the erroneous jury instruction issue on appeal.17 The Court
then considered the argument regarding the erroneous jury instruction in analyzing the ineffective
assistance of counsel claim—however, that does not save the erroneous jury instruction itself from
procedural default.
13 Id.
14 Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997) citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991);
Harris v. Reed, 489 U.S. 255, 262-63 (1989); Wainwright v. Sykes, 433 U.S. 72, 81 (1977).
15 Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995).
16 Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999) citing Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989); Ellis v.
Lynaugh, 873 F.2d 830, 838 (5th Cir. 1989).
17 Griner, 2019 WL at *3.
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“An ineffective assistance claim, which proceeds on a separate legal theory and is governed
by a different legal analysis, is obviously distinct from a claim asserting an underlying substantive
violation on which the ineffective assistance claim is based.”18 Exhaustion of the ineffective
assistance of counsel claim does not constitute exhaustion of the erroneous jury instruction claim,
even if the claim is considered in relation to the ineffective assistance of counsel claim.19
Accordingly, the erroneous jury instruction claim was decided on an independent state procedural
bar.20
The bar imposed is also adequate. To be adequate, the state procedural rule must be strictly
or regularly followed and evenhandedly applied to the majority of similar cases.21 The First Circuit
refused 	to 	consider 	the 	erroneous 	jury 	instruction 	argument 	based 	upon 	the 	lack 	of 	a
contemporaneous objection under Louisiana Code of Criminal Procedure article 841A and article
801C, which are both variations of the contemporaneous objection rule.22 It is well settled that this
18 Cammatte v. Cain, No. 14-926, 2015 WL 10714601, at *2 (E.D. La. Dec. 21, 2015), report and recommendation
adopted, No. 14-926, 2016 WL 1598522 (E.D. La. Apr. 21, 2016) citing Sam v. Louisiana, 409 Fed.Appx. 758, 765
(5th Cir. 2011); Willis v. Vaughn, 48 Fed.Appx. 402, 406 (3rd Cir.2002) (“Willis’ ineffective assistance of counsel
claims and underlying due process claims are distinct, and exhaustion of one does not constitute exhaustion of the
other.”).
19 Willis, 48 Fed.Appx. at 406.
20 Griner raised the claim again on post-conviction relief, but it was, again, denied on procedural grounds, specifically
based upon Louisiana Code of Criminal Procedure article 930.4(A), declining to consider the claim because it had
been fully litigated on appeal. See R. Docs. 13-6, p. 169; 13-7, pp. 27-28 & 38. Though the Fifth Circuit has rejected
the argument that Louisiana Code of Criminal Procedure article 930 .4(A) is an independent and adequate state ground
(Bennett v. Whitley, 41 F.3d 1581, 1583 (5th Cir. 1994)), the Court must look through to the direct appeal to determine
why the claim was rejected on direct appeal. Because the claim was rejected on procedural grounds on the direct
appeal, and for the reasons explained herein, it is still unexhausted and procedurally defaulted. See Griffin v. Vannoy,
No. 19-684, 2022 WL 17365734, at *5 (M.D. La. Nov. 3, 2022), report and recommendation adopted, No. 19-684,
2022 WL 17365243 (M.D. La. Dec. 1, 2022) (“If the petitioner had not procedurally defaulted Claims 1, 2, and 3 by
failing to pursue a writ of certiorari with the Louisiana Supreme Court on direct appeal, La.C.Cr.P. art 930.4(A) would
not prohibit this Court from addressing these claims on the merits.”).
21 Walker v. Martin, 562 U.S. 307 (2011).
22 Louisiana Code of Criminal Procedure article 801C states as follows: “A party may not assign as error the giving
or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or
within such time as the court may reasonably cure the alleged error,” while 841A states, in pertinent part, that “[a]n
irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.”
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type of “contemporaneous objection” rule is an “independent and adequate” state procedural
ground which bars federal habeas corpus review.23
The failure to preserve a claim under Louisiana Code of Criminal Procedure article 841
has also been repeatedly recognized as an adequate state ground which bars review by the federal
courts in a habeas corpus proceeding.24 Additionally, the requirement for a contemporaneous
objection under Article 801C has been recognized as an adequate state ground which bars review
by the federal courts in a habeas corpus proceeding.25 Because the last state court to render a
judgment in the case clearly and expressly indicated that its judgment is independent of federal
law and rests on a state procedural bar, this claim is procedurally defaulted and not subject to
review.
If a procedural default has occurred, a federal court may not address the merits of a state
prisoner’s habeas claim unless the petitioner can show (1) both cause for the default and prejudice
that would result from failing to consider the claim on the merits, or (2) that failure to consider the
claim on the merits would result in a miscarriage of justice, i.e. the conviction of one who is
actually innocent.26 Even where a petitioner fails to show cause and prejudice for a procedural
default, a court must still consider whether it should reach the merits of a petitioner’s claims in
23 Wainwright v. Sykes, 433 U.S. 72, 87–88 (1977). The ruling, therefore, was independent of federal law and relied
strictly on state procedural requirements. See Harris, 489 U.S. at 263; Glover, 128 F.3d at 902.
24 See, Toney v. Cain, 24 F.3d 240, 1994WL243453, at *2 (5th Cir. May 20, 1994) (Table, Text in Westlaw); Proctor
v. Butler, 831 F.2d 1251, 1253 (5th Cir.1987); Riggins v. Butler, 705 F.Supp. 1205, 1208 (E.D.La.1989); Marshall v.
Cain, No. 04–219, 2006 WL 2414073, at *1 (E.D.La. Aug. 18, 2006) (Zainey, J.) (Order adopting Report and
Recommendation); accord, Duncan v. Cain, 278 F.3d 537, 541 (5th Cir.2002) (citing Wainwright, 433 U.S. at 87–88
(Louisiana's contemporaneous objection rule is an adequate state bar to federal review of a defaulted claims)).
25 See Curington v. Cain, No. 13-5258, 2015 WL 3953190, at *8 (E.D. La. June 29, 2015) (“the contemporaneous
objection rule found in La. Code. Crim Proc. Art. 801(C) is regularly followed by the Louisiana courts to find that
appellate review of jury instruction claims are waived without a contemporaneous objection at trial.”).
26 Rocha v. Thaler, 626 F.3d 815, 822 (5th Cir. 2010).
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order to prevent a fundamental miscarriage of justice.27 Griner has made no arguments to this Court
to demonstrate cause or prejudice and has not alleged that he is actually innocent or made any
other arguments to sway this Court that consideration of his claim is required to prevent a
fundamental miscarriage of justice. Accordingly, Griner has not shown cause for his default and
has failed to demonstrate that a fundamental miscarriage of justice will result; thus, Griner has
failed to overcome his procedural bar.28
III. 	A CERTIFICATE OF APPEALABILITY SHOULD BE DENIED
If the recommendation dismissing Griner’s claim is adopted, and should Griner seek to
appeal, a certificate of appealability should be denied. An appeal may not be taken to the court of
appeals from a final order in a habeas corpus proceeding “unless a circuit justice or judge issues a
certificate of appealability.”29 Although Griner has not yet filed a Notice of Appeal, the Court may
address whether he would be entitled to a certificate of appealability.30 A certificate of
appealability may issue only if a habeas petitioner has made a substantial showing of the denial of
a constitutional right.31 In cases where the court has rejected a petitioner’s constitutional claims on
procedural grounds, a petitioner must demonstrate that “jurists of reason would find it debatable
whether the petition states a valid claim of a denial of constitutional rights and that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.”32 In this
case, reasonable jurists would not debate the correctness of the procedural ruling that Griner’s
claims are procedurally barred, such that a certificate of appealability should be denied.
27 See Schlup v. Delo, 513 U.S. 298, 314-15 (1995).
28 Frazier v. Dretke, 145 Fed.Appx 866, 871–72 (5th Cir. 2005).
29 28 U.S.C. § 2253(c)(1)(a).
30 See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
31 28 U.S.C. § 2253(c)(2)
32 Ruiz v. Quarterman, 460 F.3d 638, 642 (5th Cir. 2006).
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SCOTT D. JOHNSON
UNITED STATES MAGISTRATE JUDGE
IV. 	RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Petition Under 28 U.S.C.
§2254 for Writ of Habeas Corpus by a Person in State Custody33 filed by Jeremy Griner be
DISMISSED WITH PREJUDICE, as procedurally defaulted.
IT IS FURTHER RECOMMENDED that, if sought, a Certificate of Appealability be
DENIED.
Signed in Baton Rouge, Louisiana, on February 25, 2026.
33 R. Docs. 1, 3, & 7.
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