Hayman v. Bickham

[[COURTLISTENER_SUBOPINION {"id":"11127079","type":"100trialcourt","part":"opinion","author":null,"source_field":"html_with_citations"}]]
UNITED STATES DISTRICT COURT                              
           EASTERN DISTRICT OF LOUISIANA                             

SYLVESTER HAYMAN                             CIVIL ACTION                 

VERSUS                                       NO. 24-260                   

DUSTIN BICKHAM, ET AL.                       SECTION: D                   

                 ORDER AND REASONS                                   
The Court, having considered de novo the Petition for Writ of Habeas Corpus 
Under
28  U.S.C.  §  2254
,1 the  record,  including  the  response  by  the  State,2 the 
applicable law, the Report and Recommendation of the United States Magistrate 
Judge, 3  and  the  Objections  filed  by  petitioner,  Sylvester  Hayman, 4  hereby 
OVERRULES the objections for the reasons stated below, APPROVES the Report 
and Recommendation of the United States Magistrate Judge and ADOPTS it as its 
opinion in this matter.                                                   
I.   PETITIONER’S OBJECTIONS                                              
On January 26, 2024, Petitioner Sylvester Hayman filed a Petition for Writ of 
Habeas Corpus Under
28 U.S.C. § 2254
, challenging his convictions for indecent 
behavior  with  a  juvenile  in  violation  of La.  R.S.  14:81  and  attempted  indecent 
behavior with a juvenile under La. R.S. 14:27 and La. R.S. 14:81 from the 29th Judicial 
District Court for the Parish of St. Charles, Louisiana.5  Petitioner asserts three 

1 R. Doc. 3.  See
28 U.S.C. § 636
(b)(1)(C).                               
2 R. Doc. 7.                                                              
3 R. Doc. 15.                                                             
4 R. Doc. 18.                                                             
5 R. Doc. 1.  The Court notes that the original Petition was marked as deficient by the Clerk’s Office, 
but that Petitioner corrected the deficiency and timely re-filed his Petition on January 29, 2024.  R. 
Doc. 3.                                                                   
claims in his Petition: (1) that his trial counsel was ineffective for failing to compel 
two witnesses, K.A. and Mariah, to testify at trial;6  (2) that his trial counsel was 
ineffective for failing to retain an expert in delayed disclosure and psychological 

impact of child sexual abuse; and (3) that his appellate counsel was ineffective for 
failing to assign as reversible error on appeal the State’s eliciting testimony from E.B. 
regarding T.B.’s drug use.7                                               
On April 16, 2024, following the filing of a response from the State and the 
filing of the Petitioner’s state record, the Magistrate Judge issued a Report and 
Recommendation to the Court, recommending that the Petition be dismissed with 
prejudice and giving the Petitioner fourteen days to file any objections to the Report.8  

Petitioner  timely-filed  his  objections  to  the  Magistrate  Judge’s  Report  and 
Recommendation.9  While styled as “Memorandum in Support of Objection’s [sic] to 
the Magistrate’s Report and Recommendation,” Petitioner restates the same three 
claims  asserted  in  his  Petition  for  habeas  relief:  (1)  that  his  trial  counsel  was 
ineffective for failing to compel the testimony of K.A. and Mariah; (2) that his trial 
counsel was ineffective for failing to retain an expert in child sexual abuse; and (3) 

that his appellate counsel was ineffective for failing to assign as reversible error on 


6 Pursuant to La. R.S. 46:1844(W)(1)(a), the state courts in this case referred to the victims and their 
family members by their initials because of the sex crimes charged in the indictment.  This Court will 
do the same.  K.A. is the victim’s great-aunt.                            
7 R. Docs. 1 & 1-1.  E.B. is the victim’s great-grandmother and T.B. is the victim’s grandmother, who 
was also Hayman’s longtime girlfriend and who became his wife prior to trial. 
8 R. Doc. 15.                                                             
9 R. Doc. 18.  The Court notes that Petitioner’s objections were timely-filed following the granting of 
Petitioner’s  Motion  for  Extension  of  Time  to  File  Objections  to  the  Magistrate’s  Report  and 
Recommendation.  See R. Docs. 16 & 17.                                    
appeal  the  State’s  eliciting  testimony  from  E.G.  regarding  T.B.’s  drug  use. 10  
Petitioner seems to object to the Magistrate Judge’s conclusion that he failed to show 
that he is entitled to relief on any of his three ineffective assistance of counsel 

claims.11                                                                 
A. Ineffective  assistance  of  trial counsel for  failure to  compel  the 
  testimony of two accusatory witnesses.                             

In his first objection, which Petitioner titled “Ineffective Assistance of Trial 
Counsel,” Petitioner asserts that the State relied at trial on the hearsay testimony of 
two non-testifying witnesses, Mariah and K.A., through statements they made to law 
enforcement officers, which violated his confrontation clause rights under the Sixth 
Amendment.12  Petitioner claims that although his counsel acknowledged in opening 
statements that neither of these witnesses were on the State’s witness list, counsel 
failed to request a continuance or challenge the omission.13  Petitioner argues that 
the Fifth Circuit in Taylor v. Cain held that, “police officers cannot, through their 
own testimony, refer to the substance of statements given to them by nontestifying 
witnesses in the course of their investigation, when those statements implicate the 
defendant.”14  Petitioner claims that the State has a duty to procure witnesses when 
it intends to use their prior testimony at trial, and asserts that his due process rights 




10 R. Doc. 18.                                                            
11
Id.
at pp. 2–9.                                                        
12
Id.
at pp. 2–3.                                                        
13
Id. at p. 3
.                                                           
14
Id.
(quoting Taylor v. Cain,
545 F.3d 327
(5th Cir. 2008) (quoting Ohio v. Roberts,
448 U.S. 56
,
100 
S.Ct. 2531
,
65 L.Ed.2d 597
(6/25/80))) (citation modified).               
were violated by his counsel’s deficient performance and that he was prejudiced by 
the deficiency.15                                                         
At first blush, it appears that Petitioner’s first objection merely restates the 

first claim in his Petition for habeas relief – that his trial counsel was ineffective for 
failing to compel the trial testimony of K.A. and Mariah.  Upon further inspection, 
however, it appears that Petitioner has conflated his ineffective assistance of counsel 
claim with a claim that the state trial court erred in admitting the testimony of law 
enforcement officers regarding statements made to them by K.A. and Mariah.  This 
is evident from the fact that Petitioner relies upon the Taylor case, which involved a 
post-conviction claim that “the trial court erred in allowing the State to admit and 

argue as substantive evidence the hearsay statements of eyewitnesses.”16   
Petitioner, however, has not asserted a post-conviction claim based upon the 
trial  court’s  purported  error  in  admitting  trial  testimony  from  law  enforcement 
officers regarding statements made by K.A. and Mariah.17  Instead, Petitioner has 
alleged that his trial counsel was ineffective for failing “to subpoena the accusing 
witnesses and/or to object to the hearsay testimony of them.”18  As the Magistrate 

Judge pointed out, the Fifth Circuit has held that, “[c]laims that counsel failed to call 
witnesses are not favored on federal habeas review because the presentation of 
witnesses is generally a matter of trial strategy and speculation about what witnesses 


15 R. Doc. 18 at p. 4 (citing Strickland v. Washington,
466 U.S. 668
,
104 S.Ct. 2052
,
80 L.Ed.2d 674
(1984)).
16 Taylor, 545
F.3d at 331 (citation modified) (emphasis added).          
17 See R. Doc. 1.                                                         
18 R. Doc. 1-1 at p. 5.  See R. Doc. 1 at p. 3; R. Doc. 1-1 at pp. 4–5 (same). 
would have said on the stand is too uncertain.”19  The Fifth Circuit has explained 
that:                                                                     
For this reason, we require petitioners making claims of ineffective 
assistance based on counsel’s failure to call a witness to demonstrate 
prejudice by naming the witness, demonstrating that the witness was  
available to testify and would have done so, setting out the content of 
the witness’s proposed testimony, and showing that the testimony would 
have been favorable to a particular defense.20                       

The Magistrate Judge, relying upon this authority,  conducted a thorough 
analysis and concluded that Petitioner failed to establish that K.A. and Mariah would 
have been available to testify or that their testimony would have been favorable to 
the defense.  Petitioner does not object to this finding.  Instead, Petitioner asserts 
that he was not required to show what these witnesses would have testified to at trial 
or that their testimony would have been favorable to the defense because K.A. and 
Mariah “were not defense witnesses, they were State witnesses on whose testimony 
probable cause was established.”21  Petitioner provides no further explanation for this 
statement,  which  contradicts  the  allegations  made  in  his  Petition.22   Because 
Petitioner has not provided any evidence, through affidavits or otherwise, to show 
that K.A. and Mariah were available to testify at trial, what they would have testified 
to, or that their testimony would have been favorable to the defense, the Court agrees 
with the Magistrate Judge that Petitioner has failed to show that his trial counsel 

19 Woodfox v. Cain,
609 F.3d 774, 808
(5th Cir. 2010).                    
20
Id.
(quoting Day v. Quarterman,
566 F.3d 527,538
(5th Cir. 2009) (citation modified). 
21 R. Doc. 18 at p. 4.                                                    
22 See R. Doc. 1 at p. 3 (listing “Ineffective Assistance of Counsel: (1) Counsel failed to compel the 
accusatory witnesses, denying him the right to face his accuser” as the first ground of his request for 
relief); R. Doc. 1-1 at pp. 4–5 (listing “Failed to compel the accusatory witnesses” as part of his “Claim 
One Argument”).                                                           
was ineffective in failing to call K.A. and Mariah as witnesses, and that Petitioner 
has failed to show any resulting prejudice from that decision. The Court therefore 
agrees  with  the  Magistrate  Judge  that  the  state  courts’  denial  of  relief  under 

Strickland v. Washington23 was not contrary to or clearly in violation of established 
federal law, as required for Petitioner to obtain relief under
28 U.S.C. § 2254.24
B. Ineffective assistance of trial counsel for failure to retain a child 
  abuse expert.25                                                    

Petitioner next asserts that his trial counsel was ineffective for failing to cross 
examine one of the victims, after the State presented a partial video statement from 
the victim and then relied upon the testimony of the State’s child abuse expert, Dr. 
Anne Troy, to provide the remainder of the victim’s statement.26  Petitioner also 
claims that his trial counsel was ineffective for not challenging the conclusions of Dr. 
Troy, and for not retaining an expert in child sexual abuse.27  Petitioner asserts that 
this was not a sound trial strategy, that he was prejudiced by counsel’s failures, and 


23
466 U.S. 668
,
104 S.Ct. 2052
,
80 L.Ed.2d 674
(1984).                   
24 The Court notes that Petitioner’s Objections includes a section titled, “Cumulative Error Analysis 
Laws and Argument,” which appears to repeat Petitioner’s assertion that his trial counsel was 
ineffective for failing to compel the trial testimony of K.A. and Mariah.  Petitioner, for instance, asserts 
that his confrontation clause rights were violated “when the State failed to have the accusing witnesses 
in court for cross examination or show why they weren’t available.”  R. Doc. 18 at p. 9.  Petitioner 
further asserts that, “[d]efense Counsel’s deficient performance prejudiced Petitioner because she 
should have subpoenaed these witnesses when she knew, or should have known, these witnesses were 
not on the State’s list and would not be in court for cross examination.”  Id. at p. 10.  The Court has 
already addressed, and rejected, these arguments.                         
25 Regarding both of Petitioner’s ineffective assistance of trial counsel claims, this Court further notes, 
after an extensive review of the state court record, that Petitioner’s trial counsel filed numerous pre-
trial motions, issued subpoenas, both for records and witnesses, and actively engaged in pre-trial and 
trial proceedings.   The  record is replete with counsel’s  questioning of jurors during voir dire, 
questioning of witnesses during trial, and making a lengthy opening statement and closing argument.  
See R. Docs. 14-2, 14-3, & 14-4.                                          
26 R. Doc. 18 at pp. 5–6.                                                 
27 Id. at p. 6.                                                           
that those actions violated Petitioner’s due process rights and confrontation clause 
rights under the Sixth Amendment.28  While Petitioner does not specifically object to 
any of the Magistrate Judge’s findings on this issue, it appears to the Court that 

Petitioner objects to the Magistrate Judge’s conclusion that, “[t]he decision not to call 
an expert under the circumstances of this case was well within counsel’s trial strategy 
discretion.”29                                                            
As with an ineffective assistance of counsel claim based upon the failure to call 
a lay witness, the Fifth Circuit has held that an ineffective assistance of counsel claim 
based upon the failure to call an expert witness requires the petitioner to demonstrate 
prejudice by “naming the witness, demonstrating that the witness was available to 

testify and would have done so, setting out the content of the witness’s proposed 
testimony, and showing that the testimony would have been favorable to a particular 
defense.”30  The Magistrate Judge found that Petitioner failed to present any evidence 
demonstrating that an expert was available and would have testified in a manner 
beneficial to the defense, and failed to even identify an expert who would have been 
available and willing to testify.31  The Magistrate Judge also found that Petitioner 

also failed to set forth the content or substance of the unidentified witness’ proposed 
testimony.32   Because  Petitioner  has  not  addressed  any  of  these  issues  in  his 
Objections, and upon the Court’s own review of the record and the law, the Court 


28 Id. at pp. 6–7.                                                        
29 R. Doc. 15 at pp. 27–28 (citing Dees v. Caspiri,
904 F.2d 452
, 454–55 (8th Cir. 1990)). 
30 Woodfox v. Cain,
609 F.3d 774, 808
(5th Cir. 2010) (quoting Day v. Quarterman,
566 F.3d 527, 538
(5th Cir. 2009)) (citation modified).                                     
31 R. Doc. 15 at p. 26.                                                   
32
Id.
agrees with the Magistrate Judge that Petitioner has failed to show that his trial 
counsel was ineffective for failing to present the testimony of a purely theoretical 
expert,33 and has failed to demonstrate that he was prejudiced by his counsel’s 

decision to not call an expert.                                           
As the Magistrate Judge pointed out, Petitioner’s trial counsel vigorously 
cross-examined Dr. Troy34 and attacked Dr. Troy’s credibility in closing argument.35  
The Court agrees with the Magistrate Judge that it is reasonable to conclude that 
defense counsel strategically chose to undermine the State’s evidence through cross-
examination after the motion to exclude E.G.’s statements to Dr. Troy was denied.36  
Accordingly,  the  Court  agrees  with  the  Magistrate  Judge’s  determination  that 

Petitioner failed to demonstrate that the state court decision rejecting his ineffective 
assistance of counsel claim was contrary to, or involved an unreasonable application 
of, clearly established federal law, as required for Petitioner to obtain relief under
28 
U.S.C. § 2254
.                                                            
C. Ineffective assistance of appellate counsel for failing to assign as 
  error the State’s eliciting testimony by E.B. regarding T.B.’s drug 
  use.                                                               

Petitioner further asserts that his appellate counsel was ineffective for failing 
to assign as error the State’s eliciting testimony from E.B. regarding T.B.’s drug use, 
which violated Petitioner’s confrontation clause rights under the Sixth Amendment.37  

33
Id.
34 See R. Doc. 14-3 at pp. 558–60; R. Doc. 14-4 at pp. 1–16.              
35 See R. Doc. 14-4 at 139–141.                                           
36 See R. Doc. 15 at p. 27.                                               
37 R. Doc. 18 at pp. 7–9.                                                 
Petitioner  contends  that  the  State’s  questioning  exceeded  the  scope  of  cross-
examination and that he was not given the opportunity to confront the source of the 
allegations  to  attack  their  credibility.38   Notably,  Petitioner  does  not  lodge  any 

objections  to  the  Magistrate  Judge’s findings on this issue.   Instead,  Petitioner 
repeats the same claim made in his Petition for habeas relief – that appellate counsel 
was ineffective for failing to assign reversible errors,39 including the trial court’s 
admission of this inadmissible evidence at trial.40  In his Petition, Petitioner asserts 
that the State sought to elicit this testimony in an attempt to show Petitioner’s “bad 
character” and that the testimony constitutes “other crimes evidence.”41  
After reviewing the state court record, the Court agrees with the Magistrate 

Judge’s thorough analysis of this issue, and concludes that Petitioner cannot show 
that he was prejudiced by appellate counsel’s decision to not raise this argument on 
appeal, as it was not stronger that the three issues that were raised on appeal.42  The 
Court  also  agrees  with  the  Magistrate  Judge  that  the  State’s  attempt  to  elicit 
testimony  about  T.B.’s  alleged  drug  abuse  was  an  attempted  attack  on  T.B.’s 
character and credibility, not an attack on Petitioner’s character.43  Moreover, as the 

Magistrate Judge correctly pointed out, the jury did not hear any testimony about 
what E.B. had heard about T.B.’s alleged drug problem, as E.B. did not provide any 
testimony that T.B. used drugs.44  The Court further agrees with the Magistrate 

38
Id. at p. 9
.                                                           
39 R. Doc. 1 at p. 3.                                                     
40 R. Doc. 1-1 at pp. 7–9.                                                
41
Id. at p. 8
.                                                           
42 See R. Doc. 15 at pp. 28–32.                                           
43
Id. at p. 31
.                                                          
44
Id.
(citing R. Doc. 14-4 at p. 45).                                    
Judge that, in light of the strong evidence of Petitioner’s guilt, including the victims’ 
oral and written statements and drawings, Petitioner has failed to show a reasonable 
likelihood that the outcome of his appeal would have been different if his appellate 

counsel  had  raised  this  issue  on  appeal.    Accordingly,  Petitioner  has  failed  to 
demonstrate that the state courts’ denial of relief on this issue was contrary to or an 
unreasonable application of federal law to warrant relief under
28 U.S.C. § 2254
. 
As  set  forth  above,  this  Court’s  review  of  the  record  comports  with  the 
Magistrate Judge’s thorough review and reasoned analysis of the Petition.  Although 
Petitioner filed objections to the Report and Recommendation, Petitioner largely 
repeats the same arguments raised in his Petition, which were sufficiently addressed 

by the Magistrate Judge.  Accordingly, finding that Petitioner’s objections to the 
Magistrate  Judge’s  Report  and  Recommendation  are  without  merit,  the  Court 
OVERRULES the objections.                                                 
D. Certificate of Appealability.                                     
Rule 11(a) of the Rules Governing
28 U.S.C. § 2254
proceedings provides that, 
“[t]he district court must issue or deny a certificate of appealability when it enters a 

final  order  adverse  to  the  applicant.”    A  court  may  only  issue  a  certificate  of 
appealability  if  the  petitioner  makes  “a  substantial  showing  of  the  denial  of  a 
constitutional  right.”45   The  “controlling  standard”  for  issuing  a  certificate  of 
appealability requires the petitioner to show “that reasonable jurists could debate 
whether (or, for that matter, agree that) the petition should have been resolved in a 


45
28 U.S.C. § 2253
(c)(2).                                                
different  manner  or  that  the  issues  presented   [are]   adequate  to  deserve 
encouragement  to  proceed  further.”46  The  Court  finds  that  Sylvester  Hayman’s 
Petition  fails  to  satisfy  this  standard.   Accordingly,  the  Court  will  not  issue  a 
certificate of appealability. 
II.    CONCLUSION 
 IT IS  HEREBY ORDERED that the Petition of Sylvester Hayman for the 
issuance of a writ of habeas corpus under
28 U.S.C.  § 2254
is DISMISSED WITH 
PREJUDICE. 
 IT  IS  FURTHER  ORDERED  that  the  Court  DENIES a   certificate  of 
appealability. 
 New Orleans, Louisiana, August 25, 2025. 
                               (lard  1S  Vitter 
                              WENDY B.   YITTER 
                               United States District Judge 

46 Miller-El v. Cockrell,
537 U.S. 322, 336
,
123 S.Ct. 1029
,
154 L.Ed.2d 931
(2003) (quoting Slack v. 
McDaniel,
529 U.S. 473, 484
,
120 S.Ct. 1595
,
146 L.Ed.2d 542
(2000)) (citation modified).