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Bailey v. Cain

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

February 15, 2018

GARY A. BAILEY
v.
BURL CAIN, ET AL

          JUDGE, WALTER

          REPORT AND RECOMMENDATION

          MARK L. HORNSBY, U.S. MAGISTRATE JUDGE

         Introduction

         A Bossier Parish jury found Gary Anthony Bailey, Jr. guilty of simple burglary. The conviction was affirmed on appeal. State v. Bailey, 115 S.3d 739 (La.App. 2d Cir. 2013), writ denied, 129 So.3d 530 (La.). Petitioner's original 10-year sentence for the burglary was enhanced by a multiple offender proceeding, where he was adjudicated a fourth-felony offender and sentenced to life in prison without benefit of parole. The sentence was affirmed. State v. Bailey, 152 So.3d 1056 (La.App. 2d Cir. 2014), writ denied, 178 So.3d 988 (La. 2015). Petitioner also pursued a post-conviction application in state court. He now seeks federal habeas corpus relief on several grounds. For the reasons that follow, it is recommended that his petition be denied.

         Sufficiency of the Evidence

         Petitioner was convicted of burglary in connection with the theft of a window air conditioner unit from a mobile home in south Bossier City. One element of burglary is the unauthorized entry of a dwelling or structure. Petitioner admitted on the stand that he stole the air conditioner, but he denied that he entered the mobile home to do so. He continues to challenge the entry element in his habeas petition. A review of the trial evidence shows that there was sufficient evidence of that element to support the conviction.

         Tracy Bailey and his girlfriend, Kristine Doss, lived in the mobile home park where the theft occurred. They testified that they were arriving at their home around midnight on September 23, 2011 when they saw a man walking down the street. The man went toward a neighboring mobile home. Tracy and Kristine testified that the man was not deterred by their presence and was plainly trying to steal the air conditioner, so they called the police.

         Both Tracy and Kristine testified that they heard glass breaking, and the window unit fell inside the mobile home. The man then climbed in through the window and, soon after, walked out through the front door, carrying the window unit. Neither witness expressed any doubt that the man went inside the home, and Tracy said he could hear “shifting” noises while the man was inside. Tracy and Kristine both described the man as wearing pants or long shorts. It was dark in the area, but there was a street light about 80 feet away. Neither witness remembered seeing any tattoos on the man, who left the area before law enforcement officers arrived. On instruction of the police dispatcher, the witnesses did not follow the man.

         Sheriff Deputy Justin Dunn testified that K-9 Tigo tracked Petitioner to a nearby pasture, where Petitioner was bitten and arrested. Petitioner was wearing camouflage pants and no shirt. He had several tattoos on his arms and body. Tigo next tracked Petitioner's scent to a shed behind another mobile home in the park. Dunn testified that he made contact with the resident, who was Petitioner's mother. She told police that he son stayed in her shed when he was in town. Dunn testified that she signed a consent to search form. Sgt. Kenneth Johnson corroborated that the written consent was received. Officers searched the shed and found the window unit inside.

         David Horton, the owner of the trailer, was called to the scene by police. Horton identified the window unit as his, and he recognized a plastic tag that he had left on the cord. Horton testified that the trailer was a rental unit, and he had been there at about 2:00 p.m. that day to get it ready for a new tenant. He left the unit in perfect move-in condition, and he locked both the deadbolt and the doorknob. When he went in the mobile home with police, he saw that the deadbolt was unlocked, but the doorknob was locked. He explained that the doorknob was self-locking so that a person inside could exit without turning the lock. He pointed out to police that the refrigerator had been pulled out from the wall a foot or two and turned. Horton joked that perhaps the burglar determined that the refrigerator was heavier than he could carry.

         Petitioner, who was 43 at the time of this offense, testified that he had a lengthy criminal history that began at age 17 and included convictions for burglary, molestation of a juvenile, and several other crimes. He admitted that he took the air conditioner, saying, “Yes, sir, I stole it.” He said he knew the home was vacant, and he had been thinking about taking the air conditioner. He started drinking that night and because of “being drunk, utter stupidity, ” he decided to go get the air conditioner.

         Petitioner said he pushed up on the unit, which broke the window, and then he pulled it out of the window and carried it to the shed. He denied that he ever went inside the mobile home, and he said that he knew it was vacant with nothing inside to steal. Petitioner said that after returning to the shed, he looked outside and saw a patrol car in the area, so he jumped a fence and went out in a pasture where he passed out and went to sleep until Tigo arrived. He noted that his injuries from the dog bites were documented, but he said he had no cuts from broken glass that might be expected if he crawled through the broken window.

         In evaluating the sufficiency of evidence to support a conviction “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 99 S.Ct. 2781, 2789 (1979). The Jackson inquiry “does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit.” Herrera v. Collins, 113 S.Ct. 853, 861 (1993).

         Petitioner was convicted of simple burglary, defined in La. R.S. 14:62 as the unauthorized entry of any dwelling, structure, etc. with the intent to commit a felony or any theft therein. The only contested element was whether Petitioner entered the home. The state appellate court noted that Louisiana law holds that an entry is committed if any part of the intruder's person crosses the plane of the threshold. The court reviewed the testimony discussed above and found that it was sufficient to support the conviction under the Jackson standard. In particular, the two eyewitnesses testified that they watched a person push the window unit into the mobile home, crawl through the window, and walk out the front door carrying the window unit. Petitioner admitted that he was the man who took the air conditioner; he merely disagreed with whether he went through the window. The state court was not persuaded that his denial deprived the conviction of sufficient evidence, and it affirmed the conviction.

         Habeas corpus relief is available with respect to a claim that was adjudicated on the merits in the state court only if the adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d). Thus a state-court decision rejecting a sufficiency challenge is reviewed under a doubly deferential standard. It may not be overturned on federal habeas unless the decision was an objectively unreasonable application of the deferential Jackson standard. Parker v. Matthews, 132 S.Ct. 2148, 2152 (2012); Harrell v. Cain, 595 Fed.Appx. 439 (5th Cir. 2015).

         The state court's decision was an entirely reasonable application of Jackson to this record. Petitioner argues that the court should have overturned his conviction because Tracy and Kristine were not credible. He cites alleged inconsistencies or weaknesses in their testimony about matters such as their descriptions of his clothing, lighting in the area, and that they did not notice his tattoos. The state appellate court correctly rejected this argument because credibility determinations are within the province of the jury and are not to be reassessed on appeal. “[U]nder Jackson, the assessment of the credibility of the witnesses is generally beyond the scope of review.” Schlup v. Delo, 115 S.Ct. 851, 868 (1995). The jury was tasked with deciding whether to credit the testimony of the disinterested witnesses who said the thief entered the home or that of the thief who denied he made entry. The jury made a rational choice, and the state court reasonably affirmed the verdict under the lenient Jackson standard, so Petitioner is not entitled to habeas relief on this claim.

         Falsified ...


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