Tate v. Dauzat et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
STEVEN TATE CIVIL ACTION
VERSUS NO. 25-1400
WARDEN MICHELLE DAUZAT SECTION “M” (2)
REPORT AND RECOMMENDATION
Before the court is petitioner Steven Tate’s petition for a writ of habeas corpus under 28
U.S.C. § 2254 (ECF No. 4), which was referred to a United States Magistrate Judge to conduct
hearings, including an evidentiary hearing, if necessary, and to submit proposed findings and
recommendations for disposition pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C) and, as applicable,
Rule 8(b) of the Rules Governing Section 2254 Cases. Upon review of the entire record, I have
determined that a federal evidentiary hearing is unnecessary.1 Also pending before the court are
Tate’s Motion to Stay and Hold in Abeyance (ECF No. 2) and Motion for Evidentiary Hearing
(ECF No. 23). For the following reasons, I recommend that the Motion to Stay and Motion for an
Evidentiary Hearing be DENIED and the petition for habeas corpus relief be DISMISSED WITH
PREJUDICE.
I. FACTUAL BACKGROUND AND STATE COURT PROCEEDINGS
On March 30, 2017, Tate, also known as “Bubba,” was indicted by a Jefferson Parish grand
jury on one count of second-degree murder and one count of conspiracy to commit armed robbery.2
1 A district court may hold an evidentiary hearing only when the petitioner shows either the claim relies on a new,
retroactive rule of constitutional law that was previously unavailable (28 U.S.C. § 2254(e)(2)(A)(i)) or the claim relies
on a factual basis that could not have been previously discovered by exercise of due diligence (id. § 2254(e)(2)(A)(ii))
and the facts underlying the claim show by clear and convincing evidence that, but for the constitutional error, no
reasonable jury would have convicted the petitioner. Id. § 2254(e)(2)(B).
2 The state court record was electronically filed by the State at ECF No. 15. ECF No. 15-1 at 34-35, Grand Jury
Indictment, 3/30/17. LL was also indicted on both charges, but as a juvenile at the time, he was tried separately.
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At arraignment, Tate pled not guilty to both counts.3
The Louisiana Fifth Circuit Court of Appeal summarized the facts established at trial as
follows in relevant part:
On November 29, 2016, Mr. Tate and his childhood friend L.L. were
together at L.L.’s grandmother’s house playing video games. L.L.’s grandmother
and his two teenage-sisters, A.L. and T.L., were also present in the home that day.
Mr. Tate considered L.L. and his younger sisters like family. While playing video
games, a decision was made to purchase marijuana from Ethan Allen (“Mr. Allen”),
a local drug dealer and the victim in this case. Text messages presented at trial
demonstrated that Mr. Allen and A.L. had a dealer and customer relationship based
on the purchase of drugs. A text message sent from A.L.’s phone was sent
requesting a “$10 bag” from Mr. Allen. Mr. Allen was given an address to meet,
which was located across the street from L.L.’s grandmother’s house. Mr. Tate,
testifying in his own defense, admitted that he also texted Mr. Allen the same
meeting address.
When Mr. Allen arrived at the agreed upon location, Mr. Tate and L.L.
approached Mr. Allen’s vehicle. Mr. Tate testified that he did not contact Mr. Allen
about the purchase of marijuana. Mr. Tate explained that it was not his intent to
purchase drugs from Mr. Allen, but instead to talk to Mr. Allen about the
“relationship” Mr. Allen had with L.L.’s younger sister, A.L. Mr. Tate testified that
he did not know Mr. Allen but knew that he was an adult and that Mr. Allen was
“messing with [A.L.],” whom Mr. Tate stated was 14 or 15 at the time. Mr. Tate
testified that he was told that Mr. Allen was coming over to bring A.L. money. Mr.
Tate stated that although A.L. was secretive about the transaction, T.L. told him
about it. Mr. Tate testified that he was curious to meet Mr. Allen and that he
“wanted to him know how old [A.L.] was and see who he was.” Mr. Tate told T.L.
to let Mr. Allen know that he (Mr. Tate) would come out to Mr. Allen’s car to get
the money for A.L. Mr. Allen then called Mr. Tate directly. Mr. Tate explained that
he told Mr. Allen to go to the address across the street from A.L.’s house because
it was the address that T.L. had previously given to Mr. Allen.
Mr. Tate testified that when Mr. Allen arrived, he (Mr. Tate) was already
outside with L.L., waiting on someone to pick him up. Mr. Tate admitted that at
that time, he was armed with a .45 caliber Springfield Armory gun in his waistband
and that L.L. also had a gun. Mr. Tate explained that when Mr. Allen pulled up to
the curb, he walked to Mr. Allen’s car, opened the passenger door, and stood in the
doorway.
3 ECF No. 15-1 at 1260, Min. Entry, 4/17/17.
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According to Mr. Tate, Mr. Allen tried to hand him money, but he told him,
“Just hold it. I just want to talk to you right quick.” Mr. Tate asked if he was A.L.’s
boyfriend, and Mr. Allen stated that he was not. Mr. Tate questioned why Mr. Allen
would be bringing her money, and Mr. Allen asked why he was interested in
knowing. Mr. Tate told the jury that he explained to Mr. Allen that he was “like a
big brother to [A.L.] and she’s only 15,” and that he hoped they were not having
sex. Mr. Tate indicated that the previously calm interaction grew heated.
Mr. Tate testified that he then told Mr. Allen, “[D]on’t put up on her no
more [sic] and she don’t need no [sic] money from you.” According to Mr. Tate,
Mr. Allen replied, “What, you gonna [sic] stop me” and pulled out a gun and placed
it in his lap, facing towards Mr. Tate. Mr. Tate told the jury that he then began
backing up and reaching for his own gun. Mr. Tate testified that Mr. Allen fired
two shots, and Mr. Tate realized that he had been shot and began returning fire. Mr.
Tate testified that he fired two shots and then he was shot again. Mr. Tate testified
that he was shot six times and that it felt like Mr. Allen was trying to kill him. Mr.
Tate stated that he then ran under the carport and threw his gun in the grass. He
then told L.L. to call the police and an ambulance before passing out.
Mr. Tate denied setting Mr. Allen up for a robbery and stated there was no
drug transaction. Mr. Tate admitted that he shot and killed Mr. Allen, but said he
did so in self-defense.
Kremly Marrero testified at trial that on November 29, 2016, he lived at 803
Gulf Drive. At around 6:00 or 6:30 p.m., he and his wife heard gunshots. He
described it as two shots followed by a slight pause and then an array of shots. Mr.
Marrero testified that he walked outside at the same time as his neighbor, who lived
at 801 Gulf Drive. Mr. Marrero testified that he saw a vehicle “coasting” down
towards the end of the street. Mr. Marrero stated that he saw Mr. Tate under the
carport where L.L. and his grandmother lived. L.L. was screaming hysterically, and
Mr. Marrero went to help Mr. Tate, whom Mr. Marrero described as “bleeding out
everywhere.” Mr. Marrero assisted Mr. Tate until the police and EMS arrived.
Debra Lowry testified that she is the grandmother of L.L., A.L., and T.L.
She described Mr. Tate as her grandson L.L.’s friend. She said that Mr. Tate was
like a brother to L.L. and his two sisters. On November 29, 2016, Ms. Lowry was
inside her house at 812 Gulf Drive with A.L. and T.L. when a shooting occurred.
Mrs. Lowry testified that she heard what she believed to be firecrackers. Then L.L.
ran inside the house, and Mrs. Lowry went outside where she found Mr. Tate, lying
on her front porch bleeding. Mrs. Lowry testified that she “tried to call 911, but
[she] was really nervous.” She stated that she believed she called 911 and when she
realized that the police were on their way, she told her granddaughters to dispose
of their marijuana. Thereafter, Mrs. Lowry accompanied L.L. to the police bureau
where he provided a statement. While at the police bureau, L.L. used his
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grandmother’s phone to text his sister T.L., and as a result, Mrs. Lowry’s phone
was taken. Mrs. Lowry confirmed that her grandson L.L. was arrested for the
shooting and was ultimately convicted.
The State also called as witnesses several investigating officers with the
Gretna Police Department involved in this case as well as several expert witnesses.
Officer Corey Boudreaux testified that he was dispatched to the scene. Upon
arrival, he came upon a man in the street waving his arms, who told him that a man,
later identified as Mr. Allen, had been shot and was located in a vehicle. The officer
stopped and observed Mr. Allen, who had a bundle of money and a cell phone in
his lap and who was gasping for breath. Officer Boudreaux removed Mr. Allen
from the vehicle and began performing CPR until EMS arrived. Mr. Allen,
however, died on the scene. Testimony elicited at trial established that Mr. Allen
had been shot in his side, and that the shot had gone through multiple organs.
Officer Boudreaux testified, upon inspecting the vehicle, they located a
projectile in the driver’s seat, three casings in the rear of the vehicle, and one casing
outside the vehicle. A .40 caliber Smith and Wesson firearm was located in the
vehicle and seized. Officer Boudreaux saw no marijuana, other drugs, or any drug
paraphernalia in the vehicle. Mr. Allen’s vehicle was seized pursuant to a search
warrant and seven cartridge casings, two projectiles, and .40 caliber Smith and
Wesson firearm were recovered from inside the vehicle.
Officer Kevin Fernandez, a crime scene technician with the Gretna Police
Department, testified that Mr. Allen’s vehicle was processed and described the
projectile damage inside the car. He testified that the vehicle had a hole from a
projectile in the front passenger door as well as holes from projectiles on the roof
of the vehicle. Two bullet holes were found in the rain guard, which the officer
explained is the plastic shield that goes over the car window. Officer Fernandez
stated there was also damage to the interior car door from another projectile.
Officer Damond Bartlett responded to the scene at 812 Gulf Drive. Upon
his arrival, he observed several people in front of the residence screaming that
someone had been shot. He was directed to the carport, where he observed Mr. Tate
lying on the ground suffering from multiple gunshot wounds to the torso. He
located shell casing projectiles in front of the residence and observed shattered glass
on the street. EMS arrived, and Mr. Tate was transported to the hospital. Officer
Bartlett testified that he did not find marijuana or drug paraphernalia while
canvassing the scene.
Officer Fernandez also testified that he photographed the scene at 812 Gulf
Drive. At trial, he identified several photographs of the scene, including pictures of
the home: the carport and the rear exterior of the residence, as well as the interior
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of the home. He testified that a loaded 9 millimeter caliber Sig Sauer pistol was
recovered from the top of a shed. A .45 caliber Springfield Armory pistol was
recovered in the backyard. Both firearms were seized.
Detective Ralph Dunn testified that he collected video surveillance from a
residence in the area of the 800 block of Gulf Drive and from a building where Mr.
Allen’s vehicle had come to a stop. Detective Dunn testified that the video depicted
Mr. Allen's vehicle going off the road.
A search warrant for Mr. Allen’s vehicle was obtained and an iPhone was
seized from the vehicle. Officer Ashton Gibbs testified that the data retrieved from
the iPhone evidenced a series of text messages and phone calls to and from two
particular numbers directing Mr. Allen to Gulf Drive. One of those numbers was
associated with Mr. Tate, and the other number was associated with A.L. Officer
Gibbs testified that the nature of the text messages indicated that a drug deal was
being set up.
Lieutenant Brandon Leblanc, formerly with the Gretna Police Department,
testified that he was involved in the investigation of the November 29, 2016
homicide, during which he reviewed phone records. On November 29, 2016,
between 5:30 p.m. and 5:58 p.m., four calls were placed between Mr. Allen and
Mr. Tate. Lieutenant Leblanc also testified that L.L. and A.L. were involved in
getting Mr. Allen to the scene that evening. Lieutenant Leblanc stated that there
were text messages pertaining to L.L. robbing Mr. Allen; however, there was
nothing from Mr. Tate’s phone related to robbing Mr. Allen. Lieutenant Leblanc
further testified that Mr. Allen, who was 22, and A.L., who was 15, had an ongoing
relationship which involved A.L.’s purchasing of marijuana from Mr. Allen.
Lieutenant Solomon Burke, an expert in mobile device forensics, performed
data extractions on the mobile devices connected to the investigation. Lieutenant
Burke indicated that no texts between A.L. and Mr. Allen contained the word “sex”
and that only two texts contained the word “baby.” Lieutenant Burke’s testimony
corroborated Lieutenant Leblanc’s testimony regarding the exchange of phone calls
between Mr. Allen's phone and Mr. Tate's phone, indicating that there were two
calls each way and a text to Mr. Allen's phone containing the address 805 Gulf
Drive. At 5:44 p.m. on the day in question, Mr. Allen received a phone call. He
then made a call at 5:46 p.m., and received another call at 5:58 p.m. There was an
outgoing call at 6:07 p.m. to Mr. Tate that lasted four seconds. Mr. Allen’s phone
made a 911 call at 6:09 p.m.
Dr. Dana Troxclair, a forensic pathologist, with the Jefferson Parish
Coroner’s Office, conducted an autopsy of Mr. Allen. She testified that she found
a gunshot wound to the back of Mr. Allen’s armpit and an exit wound to his left
upper back. Dr. Troxclair testified that the entry wound was consistent with Mr.
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Allen’s arm not being fully stretched out. Dr. Troxclair testified that Mr. Allen bled
out as a result of the gunshot wound.
Linda Tran, an expert in firearms and tool mark examination, issued a
scientific analysis report in this case. She testified that she examined a Springfield
Armory pistol and determined that two .45 caliber cartridges had been fired from
that gun. Additionally, eight cartridge casings and a copper jacketed projectile were
determined to have been fired from a .40 caliber Smith and Wesson pistol.
Dr. Tim Scanlan, a crime scene reconstructionist, testified that three .45
caliber fired cartridge casings were recovered, which matched a .45 caliber
Springfield weapon. Dr. Scanlan testified that he was present when Mr. Allen’s
vehicle was processed and analyzed pursuant to a search warrant. He stated that
two projectiles and seven casings were recovered from the interior of Mr. Allen’s
vehicle, and one casing was recovered outside the vehicle under Mr. Allen’s body.
Dr. Scanlan testified that on inspection, Mr. Allen’s vehicle had five bullet holes
and one bullet strike mark. He explained that based on the holes and markings, he
was able to determine that one of the bullet holes that went through the car door
evidenced that the door was open at the time the shot was fired. Additionally, Dr.
Scanlan testified that he determined that two bullet holes found in the ceiling
showed metal pointing in the direction of travel, “buckling outward” and therefore
was evidence that the shots originated from inside the car. He further stated that the
angle of fire was going upward from the passenger side to the driver's side of the
vehicle. From this information, Dr. Scanlan testified that he concluded that based
on the trajectory of the shots, they originated from the front driver's seat area. He
explained that “the angle of fire would be upward straight through the roof.”
Additionally, Dr. Scanlan testified that two other shots originated from inside the
vehicle based on the bullet holes. Dr. Scanlan also explained that a bullet strike
showed that there was another bullet fired from inside the vehicle “facing back
toward that...front driver’s seat and striking” before “falling down and coming to
rest.” Moreover, Dr. Scanlan testified that a projectile that came to rest in the front
passenger-side door had been fired from the .40 caliber Smith and Wesson firearm
recovered from the rear passenger floorboard of the vehicle.
Dr. Scanlan testified that the ballistic evidence was consistent with an
individual standing outside Mr. Allen’s vehicle and firing into the open door. He
described the evidence as consistent with “focused fire” and showed a stationary
shooter. By comparison, Dr. Scanlan testified that the weapon fired by the driver of
the vehicle was “sporadic unfocused fire” as evidenced by the strike mark, the
broken window, bullet holes in the rain guard, and bullet holes in the ceiling. He
agreed that the evidence was consistent with the shooter of the .45 caliber
Springfield Armory shooting two focused shots into the vehicle, and then Mr. Allen
returning fire in a “sporadic fashion.” He further indicated that it “makes sense” for
a wounded Mr. Allen to drop the .40 caliber Smith and Wesson on the rear
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floorboard. He testified that the trajectory put the “shooter [outside the vehicle],”
close to the vehicle or a couple feet away.
The State also presented the following other crimes evidence at trial. In
April 2015, Detective Jean Lincoln and Sergeant Justin Remes with the Jefferson
Parish Sheriff’s Office were involved in an investigation regarding the shooting of
Rogelio Polledo at the Belle Meade apartment complex. Both indicated that it was
an attempted armed robbery.
Sergeant Remes explained that the victim sustained a gunshot wound to the
leg while inside his vehicle. The victim was transported to the hospital prior to
Detective Lincoln’s arrival. Upon Detective Lincoln’s arrival on the scene, he
observed a bloody passenger seat with three bullet holes in it. Two bullet casings
were found inside the vehicle, and one was found outside the vehicle. Marijuana
with blood on it was also located inside the vehicle.
The victim identified the suspect from a photographic lineup. An arrest
warrant for Mr. Tate for attempted armed robbery and shooting was obtained, and
Mr. Tate was subsequently arrested. While initially the victim had been cooperative
with the investigation, after his cell phone was held for processing, the victim
became uncooperative. Detective Lincoln agreed that it is very common for
“victims of drug rips” to be uncooperative. The case surrounding the April 2015
incident was ultimately dismissed due to the victim’s refusal to cooperate in the
prosecution of the matter. At trial, Mr. Tate acknowledged that he had been arrested
and charged with attempted robbery in 2015 and that the case had been dismissed.
Mr. Tate denied knowing anyone named “Rogelio or Roger Polledo” or being
involved in an attempted robbery involving a shooting in Belle Meade in 2015. Mr.
Tate further testified that he was prepared to go to trial in that case and prove his
innocence.4
Tate was tried before a jury on August 8 through 10, 2022.5 The jury found him guilty as
charged of second-degree murder and not guilty of conspiracy to commit armed robbery.6 Counsel
for Tate filed a motion for a new trial and motion for post-verdict judgment of acquittal, which
4 State v. Tate, 368 So. 3d 236, 239-244, No. 22-KA-570, (La. App. 5th Cir. June 21, 2023); ECF No. 15-1 at 2438-
2446, 5th Cir. Opinion, 22-KA-570, 6/21/23.
5 ECF No. 15-1 at 621-23, Trial Mins., 8/8/22; id. at 630-32, Trial Mins., 8/9/22; id. at 651-53, Trial Mins., 8/10/22;
id. at 1902-2351, Trial Tr., 8/8-10/22.
6 Id. at 654-57, Jury Verdict Forms, 8/10/22.
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were denied by the state trial court on August 29, 2022.7 That same day, the state trial court
sentenced Tate to life imprisonment without benefit of parole, probation, or suspension of
sentence.8
On direct appeal to the Louisiana Fifth Circuit, Tate’s appointed counsel asserted two
claims:
(1) The State failed to prove beyond a reasonable doubt that the homicide was
not done in self-defense. . . .
(2) The [state trial] court improperly allowed the State to use “other crimes
evidence” to demonstrate an alleged modus operandi for Tate. . . .
stemm[ing] from a 2015 arrest for attempted armed robbery that was nolle
prossed by the very prosecutor who prosecuted Tate for the charged offense
in this case.9
On June 21, 2023, the Louisiana Fifth Circuit affirmed Tate’s convictions and sentences,
finding the two claims meritless.10 The court did, however, remand the matter to state trial court
to correct a discrepancy between the minute entry and uniform commitment order when compared
to the sentencing transcript as to Tate’s sentence being run concurrently with any and all other
sentences.11 Tate’s conviction became final 30 days later, on July 21, 2023, when he did not file
for review in the Louisiana Supreme Court.12
One hundred and ninety-nine (199) days later, on February 5, 2024, Tate filed an application
for post-conviction relief in the state trial court asserting three claims:
7 Id. at 678, Sentencing Mins., 8/29/22.
8 Id.
9 ECF No. 15-1 at 2360-61,Appeal Brief, 2022-KA-570, 1/13/22.
10 Tate, 368 So. 3d at 246-49; ECF No. 15-1, 5th Cir. Opinion, 22-KA-570, at 2451-56, 6/21/23.
11 Id. at 249-50; ECF No. 15-1 at 2456.
12 La. Sup. Ct. Rule X § 5 (setting a 30-day period for seeking review in the Louisiana Supreme Court); LA. CODE
CRIM. PROC. art. 922 (addressing finality of appeal judgment); Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (“[A]
conviction becomes final when the time for seeking further direct review in the state court expires.”) (quoting Roberts
v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003)).
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(1) ineffective assistance of counsel when defense counsel failed to protect due
process rights and witness confrontation rights by failing to investigate and
call witnesses;
(2) ineffective assistance of counsel by allowing evidence of prior bad acts and
insufficient evidence; and
(3) ineffective assistance counsel by failing to a call a witness whose testimony
was crucial to debunking the State’s theory that defendant was the aggressor
and not acting in self-defense.13
On July 23, 2024, Tate filed a supplement to the post-conviction application in which he
asserted four additional claims:
(4) ineffective assistance of counsel for counsel’s failure to prepare a defense
to support defendant’s claim of self-defense;
(5) ineffective assistance of counsel for failure to effectively cross-examine
witness Kremly Marrero;
(6) ineffective assistance of counsel for counsel’s failure to request a mistrial
concerning the State’s use of La. C. E. art. 404(B) other crimes evidence;
and
(7) ineffective assistance of counsel for counsel’s failure to cross examine
expert witness Tim Scanlan about sporadic gun fire and focus gun fire.14
On August 6, 2024, the state trial court ordered the State to respond to Tate’s application
for post-conviction relief.15 The State filed an opposition response to Tate’s post-conviction
application on October 10, 2024.16 On November 21, 2024, the state trial court denied Tate’s
application holding that Tate’s ineffective assistance of counsel claims were meritless under
Strickland, 466 U.S. at 668, and related case law.17 On November 22, 2024, Tate filed a reply to
the State’s October 10, 2024, opposition response.18 By order issued December 5, 2024, the state
13 ECF No. 15-1 at 858-62, Application for Post-Conviction Relief, 2/5/24.
14 Id. at 924-29, Supplement to Application for Post-Conviction Relief, 7/23/24.
15 Id. at 985-86, Trial Court Order, 8/6/24.
16 Id. at 1002-19, State’s Response, 10/10/24.
17 Id. at 1025-29, Trial Court Order, 11/21/24.
18 Id. at 1032-33, Objection to State’s Response, 11/22/24.
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trial court noted receipt of Tate’s pleading but found no basis to disturb its November 21, 2024,
ruling denying the application.19
On December 19, 2024, Tate filed a writ application with the Louisiana Fifth Circuit
seeking review of the trial court’s November 21, 2024, order denying his post-conviction
application.20 On January 29, 2025, the court denied Tate’s writ application finding no error in the
trial court’s December 3, 2018, order and agreeing that Tate could not overcome the presumption
that counsel’s actions “might be considered strong trial strategy” under Strickland, 466 U.S. at
689, and failed to prove ineffective assistance of counsel.21
On June 3, 2025, the Louisiana Supreme Court denied Tate’s writ application finding that
he failed to meet his burden of proof under Strickland. 22 The court also noted that Tate’s
application for post-conviction relief was fully litigated in state court and he had exhausted his
right to state collateral review barring a showing of one of the narrow exceptions authorizing the
filing of a successive application.23
II. FEDERAL HABEAS PETITION
Tate filed a petition for federal habeas corpus relief on July 8, 2025, as supplemented by
his August 26, 2025, filing, asserting the following claims:
(1) he received ineffective assistance of counsel when counsel failed to
effectively cross examine the state’s expert witnesses, Dr. Tim Scanlan and
Dr. Dana Troxclair, by failing to present exculpatory evidence, such as
crime lab evidence, crime scene evidence, and an autopsy report, regarding
his claim of self-defense; and
19 Id. at 1036, Trial Court Order, 12/5/24.
20 Id. at 2562-68, 5th Cir. Writ Application, 24-KH-636, 12/19/24.
21 Id. at 1047-57, 5th Cir. Order, 24-KH-636, 1/29/25.
22 Tate v. State, 410 So. 3d 782 (La. 6/3/25); ECF No. 15-1 at 2709, La. Sup. Ct. Order, 25-KH-0285, 6/3/25; Id. at
2653-67, La. Sup. Ct. Writ Application, 25-KH-0285, 2/25/25.
23 Tate, 410 So. 3d at 782; ECF No. 15-1 at 2709, La. Sup. Ct. Order, 25-KH-0285, 6/3/25.
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(2) he suffered a due process violation when he did not receive an evidentiary
hearing in state court concerning claims in his application for post-
conviction relief.24
The State filed a response in opposition to Tate’s petition and supplemental memorandum
conceding timeliness.25 As to Tate’s ineffective assistance of counsel claim in relation to Dr. Dana
Troxclair, the State asserted petitioner failed to exhaust that claim, and any such argument or claim
would be in procedural default due to the doctrine of technical exhaustion.26 The State further
asserted that Tate’s ineffective assistance of counsel claim in relation to Dr. Tim Scanlan is
meritless under Strickland v. Washington, 466 U.S. 668 (1984), and its progeny, and the denial of
relief was neither contrary to nor an unreasonable application of federal law.27 As to any due
process violation claim regarding denial of an evidentiary hearing on his application for post-
conviction relief, the State asserted the question of whether Tate was entitled to an evidentiary
hearing is purely a matter of state law and not cognizable on federal habeas review.28
In his reply, Tate concedes his ineffective assistance of counsel claim regarding Dr. Dana
Troxclair was not adequately raised in the state court proceedings, but claims that the procedural
bar must be excused pursuant to Martinez v. Ryan, 566 U.S. 1 (2012).29 Tate reiterates his
ineffective assistance of counsel claim as to Dr. Tim Scanlan stating that counsel was ineffective
by failing to present scientific evidence directly contradicting Dr. Scanlan’s testimony.30 Tate
further states he was denied due process in regards to an evidentiary hearing on his post-conviction
24 ECF No. 1; ECF No. 4 at 5, 7; ECF No. 10 at 1-12.
25 ECF No. 17 at 20-21.
26 Id. at 21-29.
27 Id. at 29-37.
28 Id. at 37-39.
29 ECF No. 24 at 2-5.
30 Id. at 5-11.
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proceedings as he has requested an evidentiary hearing at every step of the process, including
federal habeas review, and continues to be denied.31
A. Motion to Stay
When filing his federal habeas petition, Tate also filed a motion requesting the court stay
his federal habeas proceedings.32 In his motion, Tate states he is unsure of exact one-year deadline
under 28 U.S.C. § 2244 and requests the court to hold his application in abeyance until he submits
a memorandum of law in support of his petition that is currently being litigated.33 In its opposition
to the motion to stay, the State asserts that Tate’s motion is moot.34 The State argues a stay is not
warranted as Tate’s petition is timely and he successfully submitted his memorandum in support
to his federal habeas petition.35
B. Motion for Evidentiary Hearing
In addition, Tate also filed a motion requesting an evidentiary hearing as to his claims for
ineffective assistance of counsel.36 Tate states he has requested an evidentiary hearing at every
level of state court proceedings and has been carefully ignored.37 He further asserts he has not
failed to develop the factual basis of his ineffective assistance of counsel claim in state court, but
has been prevented by state action from developing said factual basis due to the denial of an
evidentiary hearing.38 As a result, Tate requests the court grant him an evidentiary hearing on his
31 Id. at 12-14.
32 ECF No 2.
33 Id. at 1.
34 ECF No. 16 at 1.
35 Id. at 1-2.
36 ECF No. 23.
37 Id. at 3.
38 Id. at 5-7.
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ineffective assistance of counsel claims.39
III. LAW AND ANALYSIS
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-
132, 110 Stat. 1214, comprehensively revised federal habeas corpus legislation, including 28
U.S.C. § 2254. The AEDPA went into effect on April 24, 1996,40 and applies to habeas petitions
filed after that date.41 Tate’s petition is deemed filed on July 1, 2024.42
A. Stay Not Warranted
At the time of filing his habeas petition, Tate filed a motion to stay and hold in abeyance.43
In Pliler v. Ford, 542 U.S. 225, 227 (2004), the Supreme Court addressed the availability of a stay-
and-abeyance in connection with “mixed petitions” containing both exhausted and unexhausted
claims. The Pliler court ultimately reiterated the long-standing directive that a mixed petition be
dismissed without prejudice to require exhaustion. 44 The Supreme Court recognized that a
petitioner had two choices when faced with dismissal of a mixed petition: (1) return to the state
courts to exhaust his claims in full; or (2) amend or resubmit his petition to raise only exhausted
39 Id. at 7.
40 The AEDPA was signed into law on that date and did not specify an effective date for its non-capital habeas corpus
amendments. Absent legislative intent to the contrary, statutes become effective at the moment they are signed into
law. United States v. Sherrod, 964 F. 2d 1501, 1505 (5th Cir. 1992).
41 Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh v. Murphy, 521 U.S. 320 (1997)).
42 The Fifth Circuit has recognized that a “mailbox rule” applies to pleadings, including habeas corpus petitions filed
after the effective date of the AEDPA, submitted to federal courts by prisoners acting pro se. Under this rule, the date
when prison officials receive the pleading from the inmate for delivery to the court is considered the time of filing for
limitations purposes. Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) abrogated on other grounds by
Richards v. Thaler, 710 F.3d 573, 578–79 (5th Cir. 2013); Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998);
Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995). The petition is signed and dated by Tate on July 1, 2025,
which is the soonest date of receipt that a prison legal department may have received the filing for mailing purposes.
ECF No. 1 at 15 (filed after deficiency corrected at ECF No. 4 at 15).
43 ECF No. 2.
44 Id. at 233.
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claims in the federal district court.45
The Supreme Court later held that stay-and-abeyance is an extraordinary remedy not to be
made readily available to a habeas petitioner.46 The Rhines Court warned that staying federal
habeas corpus petitions and holding them in abeyance, “if employed too frequently, has the
potential to undermine [the above-described] twin purposes”, explaining:
Staying a federal habeas petition frustrates AEDPA’s objective of encouraging
finality by allowing a petitioner to delay the resolution of the federal proceedings.
It also undermines AEDPA’s goal of streamlining federal habeas proceedings by
decreasing a petitioner’s incentive to exhaust all his claims in state court prior to
filing his federal petition.47
The Court cautioned that a stay-and-abeyance “should be available only in limited circumstances,”
and is appropriate only when the court determines that there was “good cause” for the failure to
fully exhaust state court remedies on all claims raised.48 Stays are improper when the unexhausted
claims are “plainly meritless” or where the petitioner has engaged in “abusive litigation tactics or
intentional delay.”49
Tate requests the court to stay his federal habeas petition as he is unsure about timeliness
and for him to file a memorandum in support.50 As previously mentioned, the State concedes
timeliness, and Tate filed his memorandum in support prior to the State’s response. As to Tate’s
unexhausted ineffective assistance of counsel claim regarding Dr. Dana Troxclair, a stay is not
warranted. For reasons explained later in this Report, if Tate were to return to state court in attempt
45 Id.
46 Rhines v. Weber, 544 U.S. 269, 278 (2005).
47 Id. at 277.
48 Id. (emphasis added).
49 Id.
50 ECF No. 2 at 1.
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to fully exhausted his claim, he would be procedurally barred from doing so by LA. CODE CRIM.
P. art. 930.8.51 Further, a stay is also improper as Tate’s claims are plainly meritless. Thus, it is
recommended that Tate’s motion to stay be denied.
B. Federal Evidentiary Hearing Not Warranted
Tate has not established that he is entitled to a federal evidentiary hearing on his ineffective
assistance of counsel claim. Whether to hold an evidentiary hearing is a statutorily mandated
determination limited by the provisions of § 2254(e)(2), which provides that, when a petitioner
“has failed to develop the factual basis of a claim in State court proceedings, the court shall not
hold an evidentiary hearing,” except under the limited circumstances set forth in the statute.52
To the extent Tate requests an evidentiary hearing to develop the merits of his ineffective
assistance of trial counsel claim related to the cross-examination of Dr. Troxclair, he is not so
entitled. Evidentiary hearings are limited by the parameters set forth in 28 U.S.C. § 2254(e)(2),
which provides for a hearing only when the claim either “rel[ies] on a ‘new’ and ‘previously
unavailable’ ‘rule of constitutional law’ made retroactively applicable by [the United States
Supreme] Court”; or “on a ‘factual predicate that could not have been previously discovered
51 Article 930.8 generally requires that a petitioner file his post-conviction within two years of the date on which his
conviction and sentence became final. Although there are exceptions provided in the article, those exceptions to do
not appear to be applicable to Tate’s ineffective assistance of counsel claim regarding Dr. Dana Troxclair.
52 Cullen v. Pinholster, 563 U.S. 170, 185 (2011). 28 U.S.C. § 2254(e)(2) provides as follows:
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the
court shall not hold an evidentiary hearing on the claim unless the applicant shows that –
(A) the claim relies on –
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due
diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence
that but for constitutional error, no reasonable factfinder would have found the applicant guilty of
the underlying offense.
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through the exercise of due diligence.’”53 Neither situation exists in this case, as this is not a
matter of new, retroactive constitutional law nor has Tate shown that the factual predicate for the
claim could not previously have been discovered with the exercise of due diligence.
As to the ineffective assistance of counsel claim regarding counsel’s cross-examination of
Dr. Tim Scanlan, Tate diligently pursued and fully developed his claim in the state courts.54
Although he is not necessarily or per se barred from a federal evidentiary hearing under the
conditions in the statute, the Supreme Court has made clear that “review under § 2254(d)(1) is
limited to the record that was before the state court that adjudicated the claim on the merits.”55
This limitation “applies even where there has been a summary denial” of the merits in state court
proceedings.56 Thus, the decision to grant an evidentiary hearing is “generally left to the sound
discretion of district courts,” which must “consider whether such a hearing could enable an
applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant to
federal habeas relief.”57 No evidentiary hearing is required “if the record refutes the applicant’s
factual allegations or otherwise precludes habeas relief. . . . ,”58 or where there is no “factual
dispute which, if resolved in [the petitioner’s] favor, would entitle him to relief.”59
As this Report will show, the record does not support Tate’s claims and does not establish
his entitlement to any federal habeas relief. This court therefore need not conduct an evidentiary
53 Shoop v. Twyford, 142 S. Ct. 2037, 2044 (2022) (quoting 28 U.S.C. § 2254(e)(2)(A)(i) and (ii)).
54 Williams v. Taylor, 529 U.S. 420, 432 (2000) (“failed to develop” means a “lack of diligence, or some greater fault,
attributable to the prisoner or the prisoner’s counsel.”).
55 Cullen, 563 U.S. at 181; Allen v. Vannoy, 659 F. App’x 792, 810-11 (5th Cir. 2016) (citations omitted).
56 Cullen at 187 (citation omitted).
57 Schriro v. Landrigan, 550 U.S. 465, 473-75 (2007) (citations omitted); Allen, 659 F. App’x at 811.
58 Schriro, 550 U.S. at 465-66.
59 Clark v. Johnson, 202 F.3d 760, 766 (5th Cir. 2000).
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hearing or accept new testimony or evidence not previously before the state courts. For these
reasons, Tate’s motion for an evidentiary hearing must be denied.
C. Preliminary Considerations
The two threshold questions in habeas review under the amended statute are (1) whether
the petition is timely and (2) whether petitioner’s claims were adjudicated on the merits in state
court. In other words, has the petitioner exhausted state court remedies and is the petitioner in
“procedural default” on a claim.60 As to the first consideration, the State concedes that Tate’s
federal habeas petition is timely filed.61
1. Exhaustion
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state
remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the opportunity to pass upon and correct
alleged violations of its prisoners’ federal rights.”62 “To exhaust, a petitioner must have fairly
presented the substance of his claim to the state courts.”63 The exhaustion requirement is normally
satisfied only if the petitioner previously presented his claims for relief to the state’s highest court
in a procedurally proper manner according to state court rules.64 In Louisiana, the highest state
court is the Louisiana Supreme Court.65
60 Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)) (“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.”
(citations omitted)).
61 ECF No. 17 at 21.
62 Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quotation marks omitted).
63 Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001) (quotation marks omitted).
64 Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
65 See La. Const. art. V, § 5(A).
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Tate raised his claim of ineffective assistance of counsel regarding counsel’s failure to
effectively cross-examine Dr. Tim Scanlan before the trial court, on direct appeal, and to the
Louisiana Supreme Court. That claims is therefore exhausted. With regard to the claim of
ineffective assistance of counsel due to counsel’s cross-examination of Dr. Dana Troxclair, Tate
concedes he did not adequately raise that claim in state court proceedings.66 Since the ineffective
of counsel claim involving Dr. Dana Troxclair was not asserted at each level of the state court
system, it is unexhausted.
The United States Fifth Circuit Court of Appeals has held that, “when a prisoner fails to
exhaust available state remedies and the court to which the petitioner would be required to present
his claims in order to meet the exhaustion requirement would now find the claims procedurally
barred,” then the claims are considered defaulted in federal court.67 In this case, there is little
doubt that any new attempt by Tate to exhaust his ineffective assistance of counsel claim involving
Dr. Dana Troxclair would be rejected by the state courts on procedural grounds. Given that Tate
did not raise this claim in his post-conviction proceedings, if he attempted to file a second
application for post-conviction relief asserting that claim, his application would be denied as
untimely under La. Code Crim. P. art. 930.8.68
A habeas petitioner who has defaulted his federal claims in state court meets the technical
requirements for exhaustion, because there are no state remedies any longer “available” to him.69
66 ECF No. 24 at 2.
67 Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997) (internal quotation marks omitted).
68 Article 930.8 generally requires that a petitioner file his post-conviction within two years of the date on which his
conviction and sentence became final. Although there are exceptions provided in the article, those exceptions to do
not appear to be applicable to Tate’s claim.
69 Gray v. Netherland, 518 U.S. 152, 161-162 (1996); see 28 U.S.C. § 2254(b); Coleman v. Thompson, 501 U.S. 722,
732 (1991) (citing Engle v. Isaac, 456 U.S. 107, 125-126, n.28 (1982)). The United States Supreme Court has
determined that the exhaustion requirement “ ‘refers only to remedies still available at the time of the federal petition,’
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As the state-court review of Tate’s unexhausted claim must be deemed technically exhausted, the
claim must be evaluated for procedural default.70 The procedural bar created by a petitioner’s
technical exhaustion stands as an adequate and independent state procedural ground and prevents
federal habeas corpus review of a defaulted claim.71
The State argues that Tate is procedurally defaulted in bringing his claim of ineffective
assistance of counsel regarding counsel’s cross-examination of Dr. Troxclair as the state court
would find Tate procedurally barred from bringing the claim under La. Code Crim. P. art 930.8.72
The State, however, has not addressed or considered the propriety of a procedural bar to the
ineffective assistance of trial counsel claim under the United States Supreme Court’s holdings in
Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013). In Martinez, the
Supreme Court held that a procedural bar imposed by a state court “‘will not bar a federal habeas
court from hearing a substantial claim of ineffective assistance at trial if, in the [State’s] initial-
review collateral proceeding, there was no counsel or counsel in that proceeding was
ineffective.’” 73 The court need not require argument on this point, however, because the
[and] it is satisfied ‘if it is clear that [the habeas petitioner’s] claims are now procedurally barred under [state] law.’ ”
(citations omitted) Gray, 518 U.S. at 161-62 (quoting Engle, 456 U.S. at 125 n.28, and Castille v. Peoples, 489 U.S.
346, 351 (1989)).
70 See Gray, 518 U.S. at 162 (“... the procedural bar that gives rise to exhaustion provides an independent and adequate
state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted
claim ...”); Coleman, 501 U.S. at 735 n.1 (“[I]f the petitioner failed to exhaust state remedies and the court to which
petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the
claims procedurally barred, ... [then] there is a procedural default for purposes of federal habeas ...”).
71 Gray, 518 U.S. at 162 (“[t]he procedural bar that gives rise to exhaustion provides an independent and adequate
state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted
claim ...”); see also Coleman, 501 U.S. at 735 n.1 (“[I]f the petitioner failed to exhaust state remedies and the court to
which petitioner would be required to present his claims in order to meet the exhaustion requirement would now find
the claims procedurally barred, ... [then] there is a procedural default for purposes of federal habeas....”); Beazley v.
Johnson, 242 F.3d 248, 264 (5th Cir. 2001).
72 ECF No. 17 at 27.
73Trevino, 569 U.S. at 417 (quoting Martinez, 566 U.S. at 17). As later shown in this Report, Tate has no substantial
claim of ineffective assistance of trial counsel that would provide any relief under Martinez.
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ineffective assistance of trial counsel claim is not substantial and is wholly meritless, and this court
will dispose of Tate’s ineffective assistance of counsel claim regarding the cross-examination of
Dr. Dana Troxclair on the merits.74
D. AEDPA Standards of Merits Review
Title 28 U.S.C. § 2254(d)(1) and (2) contain revised standards of review for questions of
fact, questions of law, and mixed questions of fact and law in federal habeas corpus proceedings.75
Determinations of questions of fact by the state court are “presumed to be correct . . . and we will
give deference to the state court’s decision unless it ‘was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.’”76 The statute also
codifies the “presumption of correctness” that attaches to state court findings of fact and the “clear
and convincing evidence” burden placed on a petitioner who attempts to overcome that
presumption.77
A state court’s determination of questions of law and mixed questions of law and fact are
reviewed under 28 U.S.C. § 2254(d)(1). The determination receives deference, unless the state
court’s decision “‘was contrary to, or involved an unreasonable application of, clearly established
[Supreme Court precedent.]’”78 The United States Supreme Court has clarified the § 2254(d)(1)
standard as follows:
Under the “contrary to” clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by this Court on a question of
law or if the state court decides a case differently than this Court has on a set of
74 28 U.S.C. § 2254(b)(2).
75 Nobles, 127 F.3d at 419-20 (citing 28 U.S.C. § 2254(b) and (c)).
76 Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000) (quoting 28 U.S.C. § 2254(d)(2)).
77 28 U.S.C. § 2254(e)(1).
78 Penry v. Johnson, 215 F.3d 504, 507 (5th Cir. 2000) (brackets in original) (quoting Miller v. Johnson, 200 F.3d
274, 280-81 (5th Cir. 2000)), aff’d in part, rev’d in part on other grounds, 532 U.S. 782 (2001); Hill, 210 F.3d at 485.
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materially indistinguishable facts. Under the “unreasonable application” clause, a
federal habeas court may grant the writ if the state court identifies the correct
governing legal principle from this Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.79
The “critical point” in determining the Supreme Court rule to be applied “is that relief is available
under § 2254(d)(1)’s unreasonable-application clause if, and only if, it is so obvious that a clearly
established rule applies to a given set of facts that there could be no ‘fairminded disagreement’ on
the question.”80 “Thus, ‘if a habeas court must extend a rationale before it can apply to the facts
at hand,’ then by definition the rationale was not ‘clearly established at the time of the state-court
decision.’”81
“‘[A] federal habeas court may not issue the writ simply because that court concludes in
its independent judgment that the state-court decision applied [a Supreme Court case]
incorrectly.’”82 Rather, under the “unreasonable application” standard, “the only question for a
federal habeas court is whether the state court’s determination is objectively unreasonable.”83 The
burden is on the petitioner to show that the state court applied the precedent to the facts of his case
in an objectively unreasonable manner.84
79 Williams v. Taylor, 529 U.S. 362, 412-13 (2000); Penry v. Johnson, 532 U.S. 782, 792-93 (2001) (citing Williams,
529 U.S. at 405-06, 407-08); Hill, 210 F.3d at 485.
80 White v. Woodall, 572 U.S. 415, 427 (2014) (citing Harrington v. Richter, 562 U.S. 86, 103 (2011); Knowles v.
Mirzayance, 556 U.S. 111, 122 (2009)); Shoop v. Hill, 139 S. Ct. 504, 506 (2019) (quoting Harrington, 562 U.S. at
103).
81 White, 572 U.S. at 426 (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)); Shoop, 139 S. Ct. at 509
(habeas courts must rely “strictly on legal rules that were clearly established in the decisions of this Court at the
relevant time.”)
82 Price v. Vincent, 538 U.S. 634, 641 (2003) (brackets in original) (quoting Woodford v. Visciotti, 537 U.S. 19, 24-
25 (2002) (internal citations omitted)).
83 Neal v. Puckett, 286 F.3d 230, 246 & n.14(5th Cir. 2002) (citing cases).
84 Price, 538 U.S. at 641 (quoting Woodford, 537 U.S. at 24-25); Wright v. Quarterman, 470 F.3d 581, 585 (5th Cir.
2006).
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1. Effective Assistance of Trial Counsel (Claim 1)
Tate alleges that he received ineffective assistance of counsel when his trial counsel failed
to effectively cross-examine the state’s expert witnesses, Dr. Tim Scanlan and Dr. Dana Troxclair,
at trial.85 Tate claims that during cross-examination trial counsel failed to introduce crime lab,
crime scene evidence, and autopsy reports that would have contradicted the experts’ testimony and
aided in their theory of self-defense.86
The State argues that Tate’s claim involving the cross-examination of Dr. Troxclair is
procedurally barred as he failed to exhaust the claim in the state courts.87 The State asserts that the
state courts’ denial of relief on Tate’s claim, as to Dr. Scanlan, under Strickland and its progeny
was not contrary to, or an unreasonable application of, Supreme Court law.88 The State asserts that
trial counsel’s decisions concerning the cross-examination of Dr. Scanlan were trial strategy. As
to Tate’s assertion that had trial counsel used certain evidence in cross-examination it would have
contradicted Dr. Scanlan’s testimony and corroborated that Tate acted in self-defense, the State
asserts that the crime scene report, autopsy report, ballistics report, and crime scene photographs
were presented in the State’s case-in-chief and would not have resulted in a different outcome had
trial counsel used that evidence during cross-examination.89
a. State Court Rulings
As previously mentioned, Tate did not raise his ineffective assistance of counsel claim
regarding the cross-examination of Dr. Troxclair in the state courts. Tate initially asserted his
85 ECF No. 4 at 5.
86 Id.
87 ECF No. 17 at 27.
88 Id. at 36-37.
89 Id. at 27.
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claims of ineffective assistance of trial counsel for failing to effectively cross-examine Dr. Tim
Scanlan in his 2024 state application for post-conviction relief.90 The state trial court denied relief
on the claims citing his failure to meet the Strickland standards.91 The state trial court noted:
Counsel’s choice of which questions to ask witnesses goes directly to counsel’s
trial strategy. Defense counsel questioned Dr. Scanlan regarding his ballistics and
addressed the defendant’s claim of self-defense. The court finds the defendant’s
allegations regarding ineffective assistance of counsel to be speculative and
conclusory. The defendant offers no proof of deficiency in counsel’s performance,
or of any prejudice resulting.”92
On January 29, 2025, the Louisiana Fifth Circuit also denied relief finding no error in the
trial court’s reasoning and that counsel’s cross-examination of Dr. Scanlan did not fall below an
objective standard of reasonableness.93 The Louisiana Supreme Court also denied Tate’s related
writ application on February 25, 2025, citing Tate’s failure to meet his burden of proof under
Strickland.94
b. Strickland Standards
The issue of effective assistance of counsel is a mixed question of law and fact.95 Under
the AEDPA standards outlined previously, this court must determine whether the state courts’
denial of relief was contrary to or an unreasonable application of Supreme Court precedent.
As eluded to previously, in Strickland, relied on by the Louisiana courts, the United States
Supreme Court established a two-part test for evaluating claims of ineffective assistance of
90 ECF 15-1 at 859, Application for Post-Conviction Relief, 2/5/24.
91 Id. at 1021, Trial Court Order, 11/21/24.
92 Id.
93 Id. at 1053, 5th Cir. Order, 24-KH-636, 1/29/25.
94 Tate, 410 So. 3d at 782; ECF No. 15-1 at 2709, La. Sup. Ct. Order, 25-KH-0285, 6/3/25.
95 Strickland, 466 U.S. at 698 (citation omitted); Clark v. Thaler, 673 F.3d 410, 416 (5th Cir. 2012); Woodfox v. Cain,
609 F.3d 744, 789 (5th Cir. 2010) (citing Richards v. Quarterman, 566 F.3d 553, 561 (5th Cir. 2009).
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counsel, requiring petitioner to prove both deficient performance and resulting prejudice.96 The
Supreme Court first held that “the defendant must show that counsel’s representation fell below
an objective standard of reasonableness.”97 Second, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.”98 A court need not address both prongs of the conjunctive Strickland
standard, but may dispose of a claim based solely on a petitioner’s failure to meet either prong of
the test.99 A habeas corpus petitioner “need not show that ‘counsel’s deficient conduct more
likely than not altered the outcome in the case.’ . . . But it is not enough under Strickland, ‘that the
errors had some conceivable effect on the outcome of the proceeding.’”100
The Supreme Court has clarified that, on habeas review under Strickland, “[t]he question
is whether an attorney’s representation amounted to incompetence under prevailing professional
norms, not whether it deviated from best practices or most common custom.”101 “Even under de
novo review, the standard for judging counsel’s representation is a most deferential one.”102 The
courts must therefore apply the “strong presumption” that counsel’s strategy and defense tactics
fall “within the wide range of reasonable professional assistance.”103
96 Strickland, 466 U.S. at 697.
97 Id. at 687-88.
98 Id. at 694; accord, United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999).
99 Id. at 893 (citation omitted).
100 Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994) (citation omitted) (quoting Strickland, 466 U.S. at 693);
Harrington, 562 U.S. at 112 (Strickland requires a “substantial” likelihood of a different result, not just “conceivable”
one.)
101 Harrington, 562 U.S. at 105 (internal quotations and citation omitted).
102 Id.
103 Strickland, 466 U.S. at 690.
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Federal habeas courts presume that litigation strategy is objectively reasonable unless
clearly proven otherwise by a petitioner.104 “It is all too tempting to second-guess counsel’s
assistance after conviction or adverse sentence.”105 A federal habeas court must eliminate the
distorting effects of hindsight, reconstruct the circumstances of counsel’s challenged conduct, and
evaluate the conduct from counsel’s perspective at the time of trial.106 Tactical decisions, when
supported by the circumstances, are objectively reasonable and not deficient performance.107
c. Trial Counsel’s Cross Examination of the State’s Expert Witnesses
Tate alleges that he received ineffective assistance of counsel when his trial counsel failed
to effectively cross-examine the state’s expert witnesses, Dr. Tim Scanlan and Dr. Dana Troxclair,
at trial.108 Tate claims that during cross-examination trial counsel failed to introduce crime lab,
crime scene evidence, and autopsy reports that would have contradicted the experts’ testimony and
aided in their theory of self-defense.109
As the state courts resolved, Tate has not shown deficiency in his counsel’s questioning of
Dr. Scanlan at trial. Upon review of the record, the court finds the same applies to counsel’s
questioning of Dr. Troxclair. The method and scope of cross examination is a type of trial strategy
for which counsel is granted reasonable latitude.110 “The decision whether to cross-examine a
witness, and if so, how vigorously to challenge the witness’ testimony, requires a quintessential
104 Id. at 689; Geiger v. Cain, 540 F.3d 303, 309 (5th Cir. 2008); Moore v. Johnson, 194 F.3d 586, 591 (5th Cir. 1999)
superseded by statute on other grounds as stated in Hernandez v. Thaler, 463 F. App’x 349, 356 (5th Cir. 2012).
105 Harrington, 562 U.S. at 105 (citations and quotations omitted).
106 Strickland, 466 U.S. at 689; Clark v. Johnson, 227 F.3d 273, 282-83 (5th Cir. 2000) (citation omitted).
107 Lamb v. Johnson, 179 F.3d 352, 358 (5th Cir. 1999) (citing Rector v. Johnson, 120 F.3d 551, 564 (5th Cir. 1997),
and Mann v. Scott, 41 F.3d 968, 983-84 (5th Cir. 1994)).
108 ECF No. 4 at 5.
109 Id.
110 See United States v. Octave, No. 12cr205, 2015 WL 6620117, at *6 (E.D. La. Oct. 30, 2015) (citing Pape v. Thaler,
645 F.3d 281, 291 (5th Cir. 2011)).
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exercise of professional judgment.”111 As the United States Supreme Court has cautioned, federal
habeas courts are not to second-guess counsel’s decisions on matters of trial strategy, and instead
must employ a strong presumption that counsel’s conduct falls within a wide range of reasonable
assistance.112 It is also irrelevant that another attorney might have made other choices or handled
such issues differently. “There are countless ways to provide effective assistance in any given
case. Even the best criminal defense attorneys would not defend a particular client in the same
way.”113 It is likewise necessary to remember that when a petitioner is asserting a claim of
inadequate cross-examination, he bears the burden to prove to show “how a different cross-
examination would have created a reasonable probability of a different outcome.”114
In Tate’s case, the trial transcript reflects that his counsel questioned Dr. Troxclair on cross-
examination about the procedure for conducting the autopsy, the levels of Tramadol and THC in
the decedent’s blood, and the effects they may have on an individual.115 As for Dr. Scanlan, the
trial transcript reflects that Tate’s counsel cross-examined the expert on the ballistics evidence and
distance and trajectory at which bullets may have been fired by the shooter.116
The record demonstrates that defense counsel attempted to discredit the State’s case
through cross-examination of the state’s expert witnesses and others, in an effort to bolster the
theory that Tate acted in self-defense. Most notably, Tate took the stand at trial and testified to
111 Ford v. Cockrell, 315 F. Supp. 2d 831, 859 (W.D. Tex. 2004), aff’d, 135 F. App’x 769 (5th Cir. 2005); Lewis v.
Cain, No. 09-2848, 2009 WL 3367055, at *8 (E.D. La. Oct. 16, 2009), aff’d, 444 F. App’x 835 (5th Cir. 2011);
Williams v. Cain, Nos. 06-2224 c/w 06-0344, 2009 WL 1269282, at *11 (E.D. La. May 7, 2009), aff’d, 359 F. App’x
462 (5th Cir. 2009); Parker v. Cain, 445 F. Supp. 2d 685, 710 (E.D. La. Aug. 9, 2006).
112 Strickland, 466 U.S. at 689.
113 Id.
114 Castillo v. Stephens, 640 F. App’x 283, 292 (5th Cir. 2016).
115 ECF No. 15-1 at 2060-63, Trial Tr., 8/9/22.
116 Id. at 2241-42, Trial Tr., 8/9/22.
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counsel’s theory of self-defense stating that the interaction between him and the decedent became
heated when the decedent became aggressive, the decedent shot first, and that Tate returned fire
as he feared for his life.117 The jury heard the testimony. The fact that the jury did not believe the
theory defense offered does not render counsel’s performance constitutionally deficient.118 “[I]t
is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude
that a particular act or omission of counsel was unreasonable.”119
Tate has not met the requirements to support his Strickland claim. He offers only self-
serving, speculative, and conclusory allegations that a different set of cross-examination questions
asked to the state’s experts by trial counsel would have better discredited the state’s evidence and
witness testimony. Therefore, Tate has failed to meet his burden of proof with respect to this
claim.120
For the foregoing reasons, Tate has failed to meet either prong of the Strickland standard
or establish an error in the state courts’ conclusions under Strickland in denying relief on his claims
of ineffective assistance of counsel. Tate, therefore, has not established that the state courts’ denial
117 Id. at 2280-83, Trial Tr., 8/10/22.
118 See Martinez v. Dretke, 99 F. App’x 538, 543 (5th Cir. 2004) (“[A]n unsuccessful strategy does not necessarily
indicate constitutionally deficient counsel.”).
119 Strickland, 466 U.S. at 689 (citations omitted).
120 See United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983) (courts view “with great caution claims of
ineffective assistance of counsel when the only evidence of a missing witness’s testimony is from the defendant”);
Anthony v. Cain, No. 07-3223, 2009 WL 3564827, at *8 (E.D. La. Oct. 29, 2009) (“This Court may not speculate as
to how such witnesses would have testified; rather, a petitioner must come forward with evidence, such as affidavits
from the uncalled witnesses, on that issue.”); Buniff v. Cain, No. 07-1779, 2011 WL 2669277, at *3 (E.D. La. July 7,
2011) (same); Combs v. United States, 2009 WL 2151844, at *10 (N.D. Tex. July 10, 2009) (“Unless the movant
provides the court with affidavits, or similar matter, from the alleged favorable witnesses suggesting what they would
have testified to, claims of ineffective assistance of counsel fail for lack of prejudice.”); Harris v. Director, No. 06-
490, 2009 WL 1421171, at *7 (E.D. Tex. May 20, 2009) (“Failure to produce an affidavit (or similar evidentiary
support) from the uncalled witness is fatal to the claim of ineffective assistance.”).
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of relief was contrary to or an unreasonable application of Supreme Court law. Thus, Tate is not
entitled to federal habeas corpus relief on his claims of ineffective assistance of counsel.
2. Denial of an Evidentiary Hearing in State Court (Claim 2)
Tate argues the state courts violated due process by dismissing his state post-conviction
claims without an evidentiary hearing. However, it is well settled that, “[i]nfirmities in state habeas
corpus proceedings do not constitute grounds for federal habeas relief.”121 An attack on the validity
of the state habeas corpus proceeding does not impact the validity of the underlying state criminal
conviction which is the focus of federal habeas relief.122
The fact that the state courts denied Tate post-conviction relief without an evidentiary
hearing does not present a cognizable federal habeas claim.123 The question of whether Tate was
entitled to an evidentiary hearing on state post-conviction relief is purely a matter of state law.
Thus, Tate is not entitled to federal habeas relief on his alleged due process violation for the state
court’s failure to hold an evidentiary hearing during his post-conviction proceedings.
RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that Steven Tate’s habeas corpus
petition under 28 U.S.C. § 2254 be DENIED and DISMISSED WITH PREJUDICE.
121 Vail v. Procunier, 747 F.2d 277, 277 (5th Cir. 1984); see also Wheat v. Johnson, 238 F.3d 357, 361 (5th Cir. 2001)
(“[I]nfirmities in state habeas proceeding are not proper grounds for federal habeas relief.”); Hallmark v. Johnson,
118 F.3d 1073, 1080 (5th Cir. 1997) (“[I]nfirmities in state habeas proceedings do not constitute grounds for relief in
federal court.”).
122 See Rudd v. Johnson, 256 F.3d 317, 319-20 (5th Cir. 2001) (“[A]n attack on the state habeas proceeding is an
attack on a proceeding collateral to the detention and not the detention itself.”).
123 See Miller v. Hooper, 2022 WL 2181327, at *32 (E.D. La. Apr. 18, 2022), adopted, 2023 WL 7489930 (E.D. La.
Nov. 13, 2023) (a claim that the state courts erred in dismissing petitioner’s claims without an evidentiary hearing did
not present a cognizable federal habeas claim).
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It is FURTHER RECOMMENDED that Tate’s Motion to Stay and Hold in Abeyance
(ECF No. 2) and Motion for Evidentiary Hearing (ECF No. 23) be DENIED.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within fourteen (14) days
after being served with a copy shall bar that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by
the district court, provided that the party has been served with notice that such consequences will
result from a failure to object.124
New Orleans, Louisiana, this _17th_ day of December, 2025.
______________________________________
DONNA PHILLIPS CURRAULT
UNITED STATES MAGISTRATE JUDGE
124 Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc) (citing 28 U.S.C. § 636(b)(1)).
Douglass referred to the previously applicable ten-day period for filing of objections, which was extended to fourteen
days by amendment effective December 1, 2009, 28 U.S.C. § 636(b)(1).
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