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Modique v. Vannoy

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

January 17, 2019

KENNETH MODIQUE LA DOC # 338032
v.
DARREL VANNOY, WARDEN

          TERRY A. DOUGHTY JUDGE

          REPORT AND RECOMMENDATION

          Karen L. Hayes United States Magistrate Judge

         Pro se 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.

         Background

         The 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 methamphetamine.
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 bill.
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 correctional setting.
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.

         Modique 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.

         On 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.[1][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. Id.

         On June 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.

         Standard ...


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