United States District Court, W.D. Louisiana, Monroe Division
A. DOUGHTY JUDGE
REPORT AND RECOMMENDATION
L. Hayes United States Magistrate Judge
Petitioner Kenneth Modique, an inmate in the custody of
Louisiana's Department of Corrections, filed the instant
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on June 12, 2018. [doc. # 1]. Modique attacks his
2015 convictions for distribution of methamphetamine and
possession of methamphetamine, as well as the sentences
imposed by Louisiana's 37th Judicial District Court,
Caldwell Parish. This matter has been referred to the
undersigned for review, report, and recommendation in
accordance with the provisions of 28 U.S.C. § 636 and
the standing orders of the Court.
underlying facts in this case have been set forth by the
Louisiana Second Circuit Court of Appeal as follows:
On August 11, 2014, the defendant was charged with
distribution of methamphetamine, in violation of La. R.S.
40:967(A)(1). The bill of information was amended March 12,
2015, to include an additional charge of possession of
methamphetamine with intent to distribute, in violation of
La. R.S. 40:967(A)(1). The defendant pled not guilty, and a
trial was held on May 25, 2015, on the two counts.
As to count one, Detective Kevin Wyles (“Wyles”),
of the Caldwell Sheriff's Department, testified that he
was working in the narcotics department on May 29, 2014, when
Christina Boulton (“Boulton”) approached him
about assisting in efforts to get the street-level drug
dealers off the streets. Boulton acted as an informant to
make a controlled drug buy from the defendant.
Boulton, who admitted to a criminal history and to having
used drugs other than methamphetamine or cocaine, testified
that she had previously met the defendant, whom she also knew
as “Q.” Boulton called the defendant on May 29,
2014, and said she was looking for about $100.00 worth of
methamphetamine. They arranged to meet in Columbia Gardens,
where the sale occurred. After the sale, Boulton met with
Wyles to give him the drugs.
Regarding count two, Sedric Meredith
(“Meredith”), an investigator with the Caldwell
Parish Sheriff's Department, testified that he was
participating in a “round up” of various drug
cases on July 3, 2014, when he received information that the
defendant and Antonio Harris (“Harris”) were at a
trailer on Duckett Street. Meredith proceeded to the location
with other officers to execute warrants for their arrest. In
making the arrest, the officers found $2, 400.00 in cash and
a small baggie of drugs.
Todd Bridges (“Bridges”), with the Louisiana
Department of Probation and Parole, testified that he was
with the “round up” team that executed the arrest
warrants. He testified that the money was found in a bedroom
that Harris had been in but that the defendant said the room
was his. He found a roll of money totaling $2, 400 on the top
shelf of the bedroom closet and a small cellophane bag
containing methamphetamine inside it on a wooden shelf. The
lab report confirmed the substance in the bag to be
After the state rested, the defendant chose to remain silent
and declined to testify. By vote of 11-1, the jury found the
defendant guilty as charged of count one, distribution of
methamphetamine, and guilty on count two of the responsive
verdict of possession of methamphetamine. The trial court
ordered a PSI report. The state filed a habitual offender
At sentencing on May 26, 2015, and having reviewed the PSI
report, the trial court noted that the defendant had four
prior felony convictions for accessory to murder, armed
robbery, burglary, and introduction of contraband into a
penal facility. The court observed that the defendant, age
40, was a career criminal who had spent the majority of his
adult life in jail and had his parole revoked three times.
The court found that the defendant's drug sales created a
risk to society and that he had not shown any positive
response to prior attempts at rehabilitation in a
After stating that any lesser sentences would deprecate the
seriousness of the offenses, the court imposed a sentence of
30 years at hard labor on count one, distribution of
methamphetamine, along with a $2, 000 fine, plus fees. In
default of payment, the trial court ordered the defendant to
serve 90 days in jail. On count two, possession of
methamphetamine, the court imposed a concurrent sentence of
five years at hard labor, along with a $1, 000.00 fine plus
fees, with 45 days in the parish jail in default of payment.
The court ordered the defendant to reimburse the IDB $2, 000.
The defendant was given credit for time served and advised
regarding post-conviction relief.
After sentencing, the state withdrew the habitual offender
bill. Claiming that the imposed sentences were excessive, the
defense objected to the sentences and filed a motion to
reconsider. The trial court denied the motion.
State v. Modique, 50, 413 (La.App. 2 Cir. 1/27/16),
186 So.3d 283, 285-86.
filed a direct appeal in the Second Circuit Court of Appeal,
arguing that his sentence was excessive. On January 27, 2016,
the Second Circuit amended the sentences imposed to vacate
the imposition of jail time in lieu of payment of fines and
fees and affirmed Modique's sentences and convictions in
all other respects. Id. at 289. On March 13, 2017,
the Louisiana Supreme Court denied Modique's subsequent
application for writ of certiorari and/or review. State
v. Modique, 2016-0464 (La. 3/13/17), 216 So.3d 801.
Modique did not file a petition for certiorari in the United
States Supreme Court.
January 22, 2016, Modique filed an application for
post-conviction relief in the state district court arguing
that the evidence against him was insufficient to support a
conviction.[doc. # 10-6 at 439-43]. The district court
denied his application on January 25, 2016. (Id. at
444). The Second Circuit Court of Appeal denied his
application on April 14, 2016. (Id. at 445). Modique
sought a supervisory and/or remedial writ, which the
Louisiana Supreme Court denied on September 6, 2017.
State ex rel. Modique v. State, 2016-0854 (La.
9/6/17), 225 So.3d 1053. In its per curiam opinion, the
Louisiana Supreme Court found that Modique had fully
litigated his application for post-conviction relief in state
court and exhausted his right to state collateral review.
12, 2018, Modique filed the instant federal habeas corpus
petition, arguing (1) excessive sentence; and (2)
insufficient evidence to support a conviction. [doc. # 1-2].
The State filed its response on September 6, 2018. [doc. #
10]. This matter is ripe.