United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
L, Hornsby, U.S. Magistrate Judge
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.
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.
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
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
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.
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. 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.
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
of the Evidence
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.
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
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
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.
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.
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.
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.
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.
Elements of the Crimes
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).
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).
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.
Jackson and Section 2254(d)
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).
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).
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