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Briley v. Kent

United States District Court, E.D. Louisiana

June 11, 2019


         SECTION “J” (2)



         This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases. Upon review of the entire record, I have determined that a federal evidentiary hearing is unnecessary. See 28 U.S.C. § 2254(e)(2).[1] For the following reasons, I recommend that the instant petition for habeas corpus relief be DENIED and DISMISSED WITH PREJUDICE.


         The petitioner, Yutico Briley, is a convicted inmate currently incarcerated in the Dixon Correctional Institute in Jackson, Louisiana.[2] On January 11, 2013, Briley was charged by bill of information in Orleans Parish with one count of armed robbery, one count of possession of a weapon by a convicted felon and one count of resisting a police officer.[3] The Louisiana Fourth Circuit Court of Appeal summarized the facts established at trial:

On November 27, 2012, at approximately 2:15 a.m., Benjamin Joseph (“victim”) was returning to his home at 304 South Cortez Street after working as a sound recording engineer. As he exited his vehicle, he was approached at gun point by two young black males. He was robbed at gun point of his wallet which contained around $102.00 in cash. The perpetrators attempted to take his cell phone, but he threw it to the ground. After the perpetrators fled, the victim put his cell phone back together and called 911 and reported the incident.
Later that afternoon, Detective Kellie Morel took over the investigation of the incident. She spoke to the victim who gave her a detailed description of the perpetrators. The victim described the perpetrator with the gun as a seventeen to nineteen year old male, “slim build, medium complexion, low hairstyle, ” and approximately five feet ten inches tall and wearing a gray hoodie-style pullover sweatshirt. He described the gun used in the robbery as a semi-automatic, black and silver pistol. He described the second perpetrator as approximately five feet eight inches tall and wearing a blue and white striped shirt.
On the evening of November 27, 2012, Officer Shelton Abram and Officer Jason Berger were assigned to proactive duty on the Task Force Unit, a unit that proactively looked for guns, drugs, violent offenders, and hot calls in progress. At approximately 5:25 p.m., they reported to work and were briefed on pertinent activity that had occurred in the district before their shift had started. They were alerted that an armed robbery had occurred around 2:00 a.m. that morning on South Cortez Street, and were provided with a description of the suspects. One of the suspects was described as a black male clad in a gray hooded sweatshirt and armed with a black and silver handgun. Officer Abram and Officer Berger observed a suspect in the 600 Block of South Pierce Street, who matched the description and was acting suspicious by “constantly looking over his shoulder” as the officers approached, and “clutching his right hip” with his right hand as he walked. The officers also observed “a bulge protrude from the right side of his hip.” As the officers “rolled up” next to the defendant, he “took off running [at a] full sprint.” The officers ultimately apprehended the defendant at approximately 8:00 to 8:30 p.m. in a vacant lot in the 600 block of South Scott Street, which is about three blocks from where the robbery had occurred and one block away from where the officers first spotted the defendant. As Officer Abram was placing the defendant in handcuffs, a black and silver handgun fell from the defendant's pants leg. The defendant was found to be in possession of a loaded black and silver semi-automatic handgun, as well as approximately $103.00.
At around 10:00 p.m., that same evening, the defendant was in custody at the New Orleans Police Department First District. The defendant was wearing a gray hooded sweatshirt with “a small little Polo emblem, ” dark colored pants and tennis shoes.
The victim was notified by the NOPD and advised that they had a subject in custody and asked that he report to the First District Police Station on North Rampart Street; “[t]hey wanted [him] to come look at a possible suspect.” The victim was admittedly “nervous” because he feared that “the guy who pretty much threatened [his] life would see [him].” After the victim calmed down he was place in the front passenger seat of a police vehicle. The officers then conducted a show-up or one-on-one identification procedure where a spotlight was shown on the defendant so that the defendant could not see the victim sitting in the front passenger seat of the police vehicle. At the time of the identification, the defendant was handcuffed and approximately fifteen to twenty feet away from the victim. At the victim's behest, the officer put the hood from the defendant's sweatshirt over the defendant's head; the victim identified the defendant with the hood of the sweatshirt both on and off of the defendant's head as the perpetrator with the gun. He also identified the gun as the weapon that the defendant had used to rob him. The victim identified in open court, both the defendant as the perpetrator who robbed him and the gun that he used in the robbery.

(footnote omitted) State v. Briley, 151 So.3d 633, 636-38 (La.App. 4th Cir. 2014); State Record Volume 4 of 5, Louisiana Fourth Circuit Court of Appeal Opinion, 2013-KA-1421, pp. 3-5, October 1, 2014.

         At trial on April 24, 2013, Briley was found guilty of armed robbery (count one) by a jury and guilty of resisting an officer (count three) by the state trial judge.[4] That same day, Briley entered a guilty plea to the felon in possession of a weapon charge (count two).[5] At a June 17, 2013 hearing, the state trial court denied Briley's motion for new trial and post-verdict judgment of acquittal.[6] After waiver of legal delays, the court sentenced Briley concurrently to 50 years in prison on count one and 12 years in prison on count two, both without benefit of parole, probation or suspension of sentence.[7] The court also sentenced Briley to serve 90 days concurrently in parish prison on count three.

         At a June 24, 2013 hearing, the state trial court adjudicated Briley a second felony offender as to count one, vacated the prior sentence and resentenced him to 60 years in prison as a multiple offender.[8]

         On direct appeal, Briley's appointed counsel asserted two errors:[9] (1) The identification evidence was insufficient to support the verdict. (2) The state trial court abused its discretion when it denied the motion to suppress the identification and erred when it allowed out-of-court evidence that tainted the in-court identification. Briley filed a pro se supplemental brief successfully requesting a remand order to allow the state trial court to rule on his newly filed pro se motion for new trial based on the victims' affidavit that altered his trial testimony.[10]

         At an April 24, 2014 hearing, the state trial court denied the motion for new trial after finding that the victim did not substantially change his testimony and that the affidavit was suspect based on Briley's threats and offer of a monetary bribe made to the victim.[11] Briley thereafter filed a pro se second supplemental appeal brief challenging the state court's ruling on the motion for new trial.[12]

         On October 1, 2014, the Louisiana Fourth Circuit affirmed Briley's convictions finding the claims meritless.[13] However, the court found an error in the weapon enhancement on the multiple offender sentence, vacated the sentence as to count one and remanded the matter for resentencing only as to count one.[14] Briley did not seek review of this ruling.

         On January 8, 2015, the state trial court resentenced Briley on the armed robbery conviction (count one) to serve 45 years in prison without benefit of parole, probation or suspension of sentence and imposed an additional five years in prison as a firearm enhancement with both to be served consecutively to the other sentences and without benefit of parole, probation or suspension of sentence.[15] The court then vacated that sentence and resentenced Briley on count one as a second felony offender to 60 years in prison without benefit of parole, probation or suspension of sentence.

         Briley's convictions and sentences became final thirty (30) days later, on Monday, February 9, 2015, [16] when he did not seek review of his direct appeal or the resentencing. See Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (citing Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003) (an appeal is final when the state defendant does not timely proceed to the next available step in an appeal process)).

         On October 1, 2015, Briley's former, retained trial counsel filed an application for post-conviction relief in the state trial court.[17] On October 27, 2015, Briley submitted a motion to stay consideration of the application to allow him time to seek documents in support of his claims.[18] On May 6, 2016, the state trial court denied Briley's request for production of documents and denied relief as to four of the seven post-conviction claims, finding that Briley's claims of insufficient evidence and error in the denial of the motions to suppress and for new trial were repetitive of claims addressed on direct appeal and barred from further review under La. Code Crim. P. art. 930.4.[19] The court also held that Briley's claim of excessive sentence was repetitive under La. Code Crim. P. art. 930.4 and an improper ground for post-conviction review under La. Code Crim. P. art. 930.3. The court granted Briley a stay until July 11, 2016, to allow him time to brief the remaining three claims of ineffective assistance of counsel, ineffective assistance of appellate counsel and defective multiple bill adjudication.

         On July 5, 2016, Briley submitted another application and additional briefing addressing only one remaining claim of ineffective assistance of trial counsel, i.e., counsel lacked time to prepare for trial, only visited Briley twice before trial and failed to make objections during trial.[20] Briley specifically alleged that trial counsel was deficient on the following grounds: (1) Counsel failed to object to evidence of the identification during the show-up line-up. (2) Counsel failed to object to the victim's in-court identification. (3) Counsel failed to object to the absence of fingerprints on the handgun. (4) Counsel failed to object to the admissibility of the gun. (5) Counsel failed to object during the preliminary examination when no fingerprints were taken from the victim's wallet or cell phone. (6) Counsel failed to obtain the surveillance video from the Evergreen Motel. (7) Counsel failed to seek a continuance to locate and call Erin Hayden who allegedly was with Briley at the motel.

         On December 28, 2016, the state trial court denied relief, finding that Briley abandoned the claims of ineffective assistance of appellate counsel and defective multiple offender adjudication had not been briefed. The court also found the remaining ineffective assistance of trial counsel claims meritless under Strickland v. Washington, 466 U.S. 668 (1984).

         On March 29, 2017, the Louisiana Fourth Circuit denied Briley's writ application seeking review of the ineffective assistance of trial counsel claims.[21] On September 21, 2018, the Louisiana Supreme Court denied Briley's related writ for failure to show ineffective assistance of counsel under Strickland.[22]


         On October 23, 2018, the clerk of this court filed Briley's petition for federal habeas corpus relief in which he asserts that he received ineffective assistance of trial counsel on the following grounds:[23] (1) Trial counsel failed to subpoena Erin Hayden, the alibi witness offered by petitioner. (2) Trial counsel failed adequately to prepare for trial. (3) Trial counsel failed timely to subpoena the surveillance video from the Evergreen Motel. (4) Trial counsel failed to make contemporaneous objections throughout the trial.

         The State filed a response in opposition to Briley's federal petition conceding exhaustion and timeliness of the petition.[24] The State argues that Briley's federal habeas claims are meritless.


         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, comprehensively revised federal habeas corpus legislation, including 28 U.S.C. § 2254. The AEDPA went into effect on April 24, 1996[25] and applies to habeas petitions filed after that date. Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). The AEDPA therefore applies to Briley's petition, which, for reasons discussed below, is deemed filed on October 30, 2018.[26] The threshold questions in habeas review under the amended statute are whether the petition is timely and whether petitioner's claims were adjudicated on the merits in state court; i.e., the petitioner must have exhausted state court remedies and must not be in “procedural default” on a claim. Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).

         The State concedes and the record shows that Briley's federal habeas petition was timely filed, state court review of his claims was exhausted and none of his claims are in procedural default. Nevertheless, Briley is not entitled to relief on the claims asserted.


         28 U.S.C. §§ 2254(d)(1) and (2) contain revised standards of review for questions of fact, questions of law and mixed questions of fact and law in federal habeas corpus proceedings. Nobles, 127 F.3d at 419-20 (citing 28 U.S.C. § 2254(b) and (c)).

         Determinations of questions of fact by the state court are “presumed to be correct . . . and we will give deference to the state court's decision unless it ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000) (quoting 28 U.S.C. § 2254(d)(2)). The amended statute also codifies the “presumption of correctness” that attaches to state court findings of fact and the “clear and convincing evidence” burden placed on a petitioner who attempts to overcome that presumption. 28 U.S.C. § 2254(e)(1).

         A state court's determination of questions of law and mixed questions of law and fact are reviewed under 28 U.S.C. § 2254(d)(1) and receive deference, unless the state court's decision “‘was contrary to, or involved an unreasonable application of, clearly established [Supreme Court precedent.]'” Penry v. Johnson, 215 F.3d 504, 507 (5th Cir. 2000) (quoting Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir. 2000)), aff'd in part, rev'd in part on other grounds, 532 U.S. 782 (2001) (brackets in original); Hill, 210 F.3d at 485. The United States Supreme Court has clarified the Section 2254(d)(1) standard as follows:

Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000); Penry, 532 U.S. 782, 792-93 (2001) (citing Williams, 529 U.S. at 405-08); Hill, 210 F.3d at 485. The “critical point” in determining the Supreme Court rule to be applied “is that relief is available under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no ‘fairminded disagreement' on the question.” White v. Woodall, 572 U.S. 415, 427 (2014) (citing Harrington v. Richter, 562 U.S. 86, 103 (2011); Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)). “Thus, ‘if a habeas court must extend a rationale before it can apply to the facts at hand,' then by ...

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