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Young v. Cain

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

February 11, 2019

GLENN YOUNG #457113
v.
N. BURL CAIN

          HICKS, CHIEF JUDGE

          REPORT AND RECOMMENDATION

          Mark L, Hornsby, U.S. Magistrate Judge

         Introduction

         A Caddo Parish jury, by a vote of 10 to 2, convicted Glenn Young (“Petitioner”) of (1) possession of more than 28 grams but less than 200 grams of cocaine and (2) illegal use of weapons. Petitioner was adjudicated a third felony habitual offender and given a lengthy sentence. His convictions, along with a conviction of a co-defendant, were affirmed on appeal. State v. Wallace and Young, 71 So.3d 1142 (La.App. 2d Cir. 2011), writ denied, 79 So.3d 1026 (La. 2012). Petitioner also pursued a post-conviction application in the state courts.

         Petitioner now seeks federal habeas corpus relief on several grounds. For the reasons that follow, it is recommended that his petition be denied. Petitioner's co-defendant, Bobby Wallace, raised several of the same claims presented in this petition, and a Report and Recommendation regarding them is pending in Wallace v. Cain, 15-cv-2823.

         Timeliness

         The state argues that the petition is untimely. The defense has potential merit, but there is some uncertainty. The facts and law applicable to the timeliness defense are outlined below, but it is recommended that the court address the claims on the merits. If a reviewing court were to find that a claim has habeas merit, the timeliness defense would need to be ruled upon.

         The court has reviewed the timeliness defense under the rules explained in Dagenhart v. Goodwin, 2016 WL 4534909 (W.D. La. 2016). The one-year limitations period to file a federal petition was tolled, with 32 days remaining, when Petitioner filed his post-conviction application. The state trial court denied that application in May 2013, after which state law allowed Petitioner 30 days to seek a writ from the appellate court.

         Petitioner did not take any action until more than one year later, in July 2014, when he filed a notice of intent to seek review before the state appellate court and asked the trial court to set an extended return date. Petitioner represented that his tardiness was because he did not receive a copy of the trial court's ruling until July 14, 2014. The trial court judge granted the extension. Tr. 1287-91. Co-defendant Wallace made similar claims of delayed notice in his case, although he claims he did not receive the trial court's ruling until August 18, 2014.

         Petitioner thereafter proceeded on a timely basis in the state courts, and he filed his federal petition about 30 days after the Supreme Court of Louisiana denied a writ application on his post-conviction application.[1] His federal petition is untimely if his lack of timely action after the trial court's post-conviction ruling is deemed to have ceased the tolling effect during the several months of inactivity that followed. If the post-conviction application had a tolling effect the entire time it was pending, then the federal petition is timely by a few days.

         The tolling effect of a post-conviction application ordinarily ceases 30 days after a trial court's denial unless the prisoner files a timely application for review with the appellate court. Melancon v. Kaylo, 259 F.3d 401 (5th Cir. 2001). Petitioner did not do that, and more than the one-year limitation period expired before he renewed the process. In this case, however, the prisoner made an uncontested claim of lack of timely notice of the trial court's decision, and the state court granted an extension of the period to seek appellate relief. Tr. 1287-91. The granting of such an extension may, under certain circumstances, effectively keep the post-conviction application pending and thus continue to toll the federal limitations period. Grillette v. Warden, 372 F.3d 765 (5th Cir. 2004). The undersigned does not necessarily find that the federal petition is timely, but the timeliness defense is less than certain. The better course of action under the circumstances is to address the merits of the petition.

         Sufficiency of the Evidence

         A. The Evidence

         Marcus Thomas testified that he joined a Shreveport street gang, the Rolling 60s Crips, when he was about 15. Fellow members included Petitioner, co-defendant Bobby Wallace, and some of their cousins. Thomas has an extensive record of misdemeanor convictions for assault, battery, theft, and the like, as well as some felonies that resulted in prison time. Thomas testified at trial that he was then 35, had completed parole, and had left the gang lifestyle after getting out of prison. He was working at a local hospital. He nonetheless remained acquainted with many gang members.

         Bad blood had developed between Thomas and certain gang members when he refused to “take a charge” for Stevie Young, who is a first cousin of Petitioner and co-defendant Bobby Wallace. Thomas said that Stevie Young received a 24-year federal sentence, and his cousins were not happy about it.

         Thomas, his girlfriend, and her two-year old daughter went to a convenience store in Shreveport, where they encountered Greg Young. Thomas and Young had an argument. As Thomas and his guests later drove down David Raines Road, several gunshots hit his SUV. Bullets broke a window and flattened two tires, but no person was hit. Thomas told police the names of three shooters: Petitioner, Bobby Wallace, and Greg Young. Thomas also told police that the men lived on Hattie Street. Thomas testified at trial that he saw Petitioner with a handgun pointing at the SUV and firing. He said there was “[n]o doubt in my mind” that Petitioner was one of the men shooting at him, and he saw a handgun in Petitioner's hand. Bobby Wallace and Greg Young were also firing handguns. At one time, he told police that Calvin Elie had also been a shooter.

         The police soon executed a search warrant for the Hattie Street house. They found Petitioner and four others inside. Police recovered a plastic baggy of 31 grams of powder cocaine from under the cushions of the couch in the front room. There were no fingerprints on the baggy. A kitchen cabinet contained small sandwich bags, an open box of baking soda, and a Glock .40-caliber handgun. A firearms expert testified that the spent casings found at the scene of the shooting were fired from that handgun. An SKS rifle was found in a car parked at the house. The car was registered to someone from Texas.

         Police found in the kitchen a digital scale of a type commonly used for weighing drugs for resale. Bobby Wallace's fingerprint was on the scale. Three agents testified that they overheard Petitioner and Wallace tell Kendra Young to take the charge by claiming that the drugs and gun belonged to her. Ms. Young initially told police that everything belonged to her, but when cautioned that other crimes may go along with ownership of the gun, she changed her story to say that the items belonged to Calvin Elie.

         Police found Calvin Elie hiding in a closet. He pleaded guilty to possession of cocaine and received probation on the condition that he testify truthfully. He testified that he did not live at the residence but had been asleep in the back bedroom and jumped in a closet when he heard the police enter the house. He denied knowledge of the cocaine found on the sofa. Petitioner and his co-defendant Bobby Wallace testified that Elie was a drug addict who was staying at the house and slept on the sofa where the drugs were found.

         Petitioner, who admitted convictions for possession of crack and indecent behavior with a juvenile, testified that he lived at the Hattie Street house with Kendra Young (his sister), her children, and Calvin Elie. He denied ever being in a gang. He said that he was home with his sister when he heard the shooting, and he was asleep in the back of the house when police later executed the search warrant. Elie was asleep on the couch when the police arrived, but he ran down the hall and hid in a closet. Petitioner and Bobby Wallace testified that Elie was a drug addict who stayed at the house because his family had run him off because of his drug problem. Petitioner denied knowing anything about the Glock, the drugs, or the scale found in his house. He was asked whether he asked his sister to take the charges for the drugs and gun. He said, “I can't recall.” He said the car in the driveway belonged to a friend from Texas, and it had been there for six or eight weeks after breaking down.

         Marquae Wallace, a younger cousin to the defendants, testified that he met Elie the day before the warrant was executed. Elie had a bag of powder cocaine, which was the same bag later seized from the house. Marquae said that he got the scales from a “fiend on the street, ” planned to sell them, and left them on the kitchen counter at the Hattie Street house.

         B. Elements of the Crimes

         Petitioner was convicted of possession of cocaine. The State was required to prove that he was in possession of the illegal drug and that he knowingly possessed it. The State did not have to prove actual physical possession. Constructive possession is sufficient to support a conviction under state law. State v. Foster, 3 So.3d 595, 600-01 (La.App. 2d Cir. 2009).

         Constructive possession means having a relationship with an object such that it is subject to one's dominion and control, with knowledge of its presence. Louisiana courts look to several factors in determining whether a defendant exercised sufficient control and dominion to establish constructive possession. They include (1) his knowledge that drugs were in the area, (2) his relationship with the person, if any, found to be in actual possession, (3) his access to the area where the drugs were found, (4) evidence of recent drug consumption, and (5) his physical proximity to drugs. State v. Major, 888 So.2d 798, 802 (La. 2004). Giving a false name or other efforts to attempt to avoid blame indicate consciousness of guilt and is a circumstance from which a jury may infer guilt. State v. Toups, 833 So.2d 910, 914 (La. 2002).

         Petitioner was also convicted of illegal use of a weapon. Louisiana law defines that crime as “the intentional or criminally negligent discharging of any firearm…where it is foreseeable that it may result in death or great bodily harm to a human being.” La. R.S. 14:94.

         C. Jackson and Section 2254(d)

         Petitioner argues that the evidence was not sufficient to prove his guilt under applicable state law. 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).

         The state courts decided the Jackson claim on the merits on direct appeal. 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 review 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).

         D. Analysis

         The state appellate court reviewed the evidence in detail. It noted that the jury was faced with an array of often contradictory testimony about the relevant factors. The bag of drugs did not bear any fingerprints, but it was under a couch in the main room of Petitioner's residence, where it was easily accessible by anyone. There was testimony that Calvin Elie was sleeping on the couch when police arrived, but he denied being there. The court reasoned that the jury, who saw Mr. Elie testify, could have concluded that it was unlikely that the seldom employed and homeless Elie was the only person with a connection to a rather significant (and ...


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