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Henry v. Keith

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

January 31, 2018

DAVID HENRY
v.
TIM KEITH

          WALTER JUDGE.

          REPORT AND RECOMMENDATION

          MARK L. HORNSBY U.S. MAGISTRATE JUDGE.

         Introduction

         A Caddo Parish jury convicted David Henry (“Petitioner”) of one count of distribution of Schedule II CDS (crack cocaine). Petitioner was adjudicated a fourth-felony offender and given a 50-year sentence. His conviction and sentence were affirmed on direct appeal. State v. Henry, 103 So.3d 424 (La.App. 2d Cir. 2012), writ denied, 109 So.3d 356 (La. 2013). Petitioner also pursued a post-conviction application in state court. He now seeks federal habeas relief on the grounds that (1) the evidence was insufficient, (2) the prosecution committed a Brady violation, and (3) his sentence was excessive. For the reasons that follow, it is recommended that his petition be denied.

         Trial Testimony

         Officer Trey Robinson testified that he was part of an undercover buy-bust operation that targeted a number of locations. One of them was a convenience store at the corner of Line Avenue and 74th Street in Shreveport, where there had been reports of drug dealing. Robinson as driver, and Officer Heather Flores as passenger, pulled into the parking lot in a car that was equipped with audio-video recording equipment, plus electronic equipment that transmitted audio to an arrest team that was monitoring them from a nearby, but out of sight, location.

         Robinson testified that Petitioner approached his car and asked him if he was a police officer. Robinson denied it, and then Petitioner asked him what he wanted. Robinson said he wanted some “hard, ” which is slang for crack, and handed Petitioner $20. Petitioner then walked over to another man (later identified as Jerry Jackson) who was standing on the side of the building, engaged in an exchange, and returned to the car. Petitioner placed the drugs on the ground outside the car door and said something to the effect that he would not hand Robinson the drugs in case he was the police. Petitioner walked off. Shenell Jones, who was with Petitioner that day, had been talking to Robinson while Petitioner went to get the drugs from Jackson. She said, “I will hand it to him, ” and then did so.

         Agent Flores was in the passenger seat speaking on a cell phone during the transaction. She was talking to the arrest team (as backup audio) and, when the transaction was completed, she gave a signal. The arrest team then pulled into the parking lot and arrested the three people who Robinson identified as participating in the transaction.

         Officer Heather Flores testified and corroborated Robinson's description of the events. Petitioner's co-defendants, Jerry Jackson and Shenell Jones, pleaded guilty and testified against him. They corroborated the significant events and implicated Petitioner in the sale of the crack cocaine. The audio and video recordings of the transaction were played for the jury, and Agent Robinson pointed out Petitioner and described his actions, which were consistent with Robinson's other testimony.

         Robinson testified that the drugs seized in such transactions are almost always field tested at the time of arrest. If they test positive, the arrestees are charged with distribution of drugs. If the product seized is “bunk” or fake drugs, the arrestees are charged with a different crime regarding counterfeit drugs. Robinson had testified at a suppression hearing that the drugs field tested positive, but he admitted at the trial that he did not field test the drugs, and he was not certain who did. In any event, Bruce Stents, a chemist with the crime lab, testified that the seized substance tested positive for cocaine.

         Deputy Sheriff Steven Ashcraft testified that he was the designated case agent, who provides a consolidation point for the paperwork, evidence, and related matters. He was on the arrest team, seated in back of a SUV parked across the street and about half a block away, so he did not have line of sight on the transaction. After the arrests were made, he did a quick debrief with Agent Robinson, and he later wrote a short report. Ashcraft said the report of the undercover agent would be more detailed.

         Ashcraft testified that he collected two small bags of suspected crack at the arrest. It appears that one bag was the one sold to Robinson, and the other was likely seized from Jerry Jackson. Ashcraft said that the drugs were field tested, but he could not remember who did it. The crime lab findings, he explained, would be the definitive findings.

         Sufficiency of the Evidence

         Petitioner argues that the evidence was not sufficient to support his conviction. He was charged with violating La. R.S. 40:967(A)(1) which states that it is unlawful for any person knowingly or intentionally to possess with intent to distribute a controlled dangerous substance classified in Schedule II. The ...


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