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Pugh v. Warden, Louisiana State Penitentiary

United States District Court, W.D. Louisiana, Shreveport Division

March 4, 2015

DAVID PUGH,
v.
WARDEN, LOUISIANA STATE PENITENTIARY

REPORT AND RECOMMENDATION

MARK L. HORNSBY, Magistrate Judge.

Introduction

David Pugh, Jr. ("Petitioner"), at age 32, had sex with a 14-year-old female named D.J., who later gave birth to a child. DNA testing showed that it was more than 99.99% likely that Petitioner was the father. A Caddo Parish jury convicted Petitioner of molestation of a juvenile. He was adjudicated a fourth-felony habitual offender based on prior convictions for indecent behavior with a juvenile, possession of a firearm by a convicted felon, and carnal knowledge of a juvenile. He was sentenced to life in prison. His conviction and sentence were affirmed on direct appeal. State v. Pugh, 12 So.3d 1085 (La.App.2d Cir. 2009). Petitioner also pursued a post-conviction application in state court. He now seeks federal habeas corpus relief. For the reasons that follow, it is recommended the petition be denied.

Timeliness

The State has raised a timeliness defense. It is a significant one, but it is not capable of complete resolution on the current record. Petitioner is entitled to the mailbox rule with respect to his post-conviction application and his federal habeas complaint so that they were deemed filed when he tendered them to prison officials for mailing. There are uncertainties about when Petitioner tendered both filings.

The post-conviction application has a certificate of service of March 3, 2010 (Tr. 397), but it includes a notarized declaration by Petitioner that a prison notary dated March 15, 2010. Tr. 375. The application was received by the state clerk of court on March 17, 2010. It cannot be determined from the record whether Petitioner turned his papers over to prison officials before the time of the notary's signature or afterward. The 12 days between those two dates are significant in this close case of timeliness.

Petitioner signed and dated his federal complaint December 1, 2011, but it was not postmarked until 18 days later on December 19, 2011. This court received it the next day. The 18-day gap between signing and postmarking is greater than usual and casts doubt on whether Petitioner tendered his complaint to prison officials on the same day he dated it.

The federal petition could be untimely if either of the two factual issues were resolved against Petitioner. More evidence would be required to get to the bottom of them. Rather than explore the timeliness issue further, the undersigned will proceed to address the petition on the merits. The timeliness defense will require resolution only if a reviewing court disagrees with the recommendation that the petition should be denied for lack of merit.

Relevant Facts

Most of Petitioner's claims focus on his contention that the sexual act occurred in Texas rather than Caddo Parish. A police report summarized an interview with the victim, D.J., who said Petitioner saw her walking down the street in Shreveport and offered to give her a ride to her grandmother's house. Petitioner did not take her to the grandmother's house, but instead got on Interstate 20 and began asking her for sex. D.J. told the officer that she refused to have sex with Petitioner, but he kept asking and they eventually drove outside the city limits of Shreveport. The report did not say in which direction they drove, but Texas is about 20 miles to the west of Shreveport. D.J. did say that they later were "driving back east on the interstate and the car broke down." The officer wrote that D.J. "stated that she could not remember exactly where they were on the interstate but remembers passing the sign that said Welcome to Shreveport." After calling a tow truck, Petitioner reclined the passenger seat and forced D.J. to have sex with him. Tr. 60-61.

Detective Janice Daley, one of the investigating officers, testified at a preliminary examination that D.J. said the attack "took place on the side of Interstate 20, somewhere in between the city limit sign and the Pines Road exit." The prosecutor asked if that was within Caddo Parish, and Daley said that it was. She added that it was also "inside the city limits of Shreveport." Tr. 183.

There was no affirmative testimony from any witness at trial about where the sexual act happened. D.J. recounted how the car broke down and Petitioner began asking her for sex. She said she told him no, but he reclined the passenger seat, climbed on top of her, pulled her clothes down, and "held both my arms back and had intercourse." She added, "I told him to stop and he still did." Tr. 223-7. The only reference to location was when D.J. said: Well, we went - like I said, we went on the interstate, but once we got on the interstate the car broke down. And that's when I noticed we was like across the Dallas state line. And the car had broke down.

Tr. 225.

D.J. said that her baby was born several months later. She had been sexually active with other males, so she did not know who the father was. Her mother said the child looked like Petitioner, and he came to visit the baby in the hospital. DNA testing proved that the ...


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