United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
L. HORNSBY U.S. MAGISTRATE JUDGE.
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.
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,
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.
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.
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.
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.
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.
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.
of the Evidence
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 ...