United States District Court, W.D. Louisiana, Shreveport Division
GARY A. BAILEY
BURL CAIN, ET AL
REPORT AND RECOMMENDATION
L. HORNSBY, U.S. MAGISTRATE JUDGE
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.
of the Evidence
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.
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.
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.
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
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.
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.
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.
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).
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.
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).
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.