IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30909

Summary Calendar

KEITH BARTHELEMY,

Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent-Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:12-CV-2335

Before REAVLEY, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:*

Keith Barthelemy, Louisiana state prisoner # 435736, appeals the 

district court’s dismissal of his 28 U.S.C. § 2254 petition in which he challenged 

his conviction for second degree murder as well as his resulting life sentence. 

Barthelemy argues that (1) he was denied his Sixth Amendment right to 

confrontation; (2) he was denied his right to conflict-free assistance of counsel; 

(3) he was denied the right to compulsory process; and (4) he was denied a fair 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 26, 2016

Lyle W. Cayce

Clerk

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trial due to prosecutorial misconduct. Generally, on appeal from the denial of 

a habeas petition, we review the district court’s findings of fact for clear error 

and issues of law de novo. Propes v. Quarterman, 573 F.3d 225, 227 (5th Cir. 

2009).

Barthelemy asserts that he was denied his right to confront all witnesses 

against him when the trial court allowed Kathy Robertson, a 911 operator, to 

authenticate a tape of the 911 call made on the date of the murder. As the 

state court and the district court concluded, the statements contained on the 

tape of the 911 call were “nontestimonial” in nature and did not run afoul of 

the Confrontation Clause because they were “made in the course of police 

interrogation under circumstances objectively indicating that the primary 

purpose of the interrogation [wa]s to enable police assistance to meet an 

ongoing emergency.” Davis v. Washington, 547 U.S. 813, 822 (2006). 

Moreover, the record reveals that Robertson did not “create a record for the 

sole purpose of providing evidence against [Barthelemy].” Melendez-Diaz v. 

Massachusetts, 557 U.S. 305, 323 (2009). Testimony offered solely for the 

purpose of authentication does not fall within the class of evidence prohibited 

by the Confrontation Clause. See id. at 322.

Next, Barthelemy argues that he was denied conflict-free counsel 

because Dwight Doskey worked for an organization run by Kerry Cuccia, 

counsel for Barthelemy’s co-defendant, Danny Scott. Scott pleaded guilty to a 

reduced charge of manslaughter in exchange for testifying against Barthelemy. 

The mere fact of multiple representation, without more, does not warrant 

automatic reversal or a presumption of prejudice. See Mickens v. Taylor, 535 

U.S. 162, 170-73 (2002). The claimant must demonstrate that the joint 

representation created an actual conflict. Id. at 171.

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The state court concluded and the district court concurred that 

Barthelemy failed to allege that an actual conflict of interest existed because 

he failed to allege that Doskey simultaneously represented two clients with 

conflicting interests. The record reveals that Doskey withdrew from 

representing Barthelemy prior to going to work for Cuccia’s organization and 

no evidence shows that Doskey had any role in representing Scott or in 

brokering Scott’s plea bargain agreement. As Barthelemy cannot demonstrate 

that Doskey ever actively represented clients with competing interests, he 

cannot demonstrate that a conflict of interest affecting the adequacy of trial 

counsel’s performance existed. See Mickens, 535 U.S. at 170-73; cf. Perillo v. 

Johnson, 205 F.3d 775, 808 (5th Cir. 2000) (finding actual conflict which 

adversely affected counsel’s performance where counsel was appointed to 

represent defendant after having represented co-defendant, who was convicted 

in prior trial and whom counsel continued to represent when co-defendant 

testified against defendant during defendant’s trial). Barthelemy’s

conclusional assertion that it was inevitable that Doskey, however 

unintentionally, shared his knowledge of Barthelemy’s case to bolster Scott’s 

plea negotiations, is insufficient to rebut by clear and convincing evidence the 

presumption of correctness afforded to the state court’s factual findings, see 28 

U.S.C. § 2254(e)(1); Brown v. Epps, 686 F.3d 281, 285 (5th Cir. 2012), and does 

not demonstrate that an actual, rather than a “theoretical” conflict existed, see

Mickens, 535 U.S. at 170-73.

Additionally, Barthelemy argues that his right to compulsory process 

was violated when the trial court allowed Lakeisha Williams to invoke her 

right against self-incrimination. He asserts that Williams’s testimony was 

essential to his case and that her testimony would not realistically have 

subjected her to prosecution. The defendant’s right of compulsory process is 

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not absolute and must yield to a claim of the Fifth Amendment’s privilege 

against self-incrimination. See United States v. Follin, 979 F.2d 369, 374 (5th 

Cir. 1992); United States v. Hernandez, 962 F.2d 1152, 1161 (5th Cir. 1992). 

As the state court and the district court concluded, the record reveals that 

Williams had “reasonable cause” to invoke her Fifth Amendment protection 

because her answers or explanations of why she could not answer were likely 

to result in “injurious disclosure[s]” about her involvement in Barthelemy’s 

case as an accessory after the fact and also her involvement as a suspect in a 

pending murder case. Hoffman v. United States, 341 U.S. 479, 486-87 (1951). 

Furthermore, Barthelemy does not indicate what testimony he believed 

Lakeisha would have provided and, thus, does not make a “plausible showing 

of how [Williams’s] testimony would have been both material and favorable to 

his defense.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). 

Lastly, Barthelemy argues that the prosecutor rendered his trial unfair 

by making some improper statements during closing remarks. Barthelemy 

fails to address all of the district court’s reasons for denying this issue and, 

thus, has abandoned the claim. See Brinkmann v. Dallas Cnty. Deputy Sheriff 

Abner, 813 F.2d 744, 748 (5th Cir. 1987) (noting that failure to address district 

court’s legal analysis is the same as not appealing the judgment). As such, he 

cannot show that the prosecutor’s misconduct was “persistent and pronounced” 

or that the evidence of his guilt was so lacking that he could not have been 

convicted but for the prosecutor’s improper remarks. See Geiger v. Cain, 540 

F.3d 303, 308 (5th Cir. 2008). 

Barthelemy fails to demonstrate that the district court erred in denying 

§ 2254 relief. § 2254(d)(1), (d)(2); see Miniel v. Cockrell, 339 F.3d 331, 336-37 

(5th Cir. 2003). Accordingly, the judgment of the district court is AFFIRMED. 

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