Haley v. Winn Correctional Center

Filing 30

REPORT AND RECOMMENDATION re 4 Petition for Writ of Habeas Corpus filed by Hernando Haley: IT IS RECOMMENDED that the petition for writ of habeas corpus be denied, and that Petitioner's complaint be dismissed with prejudice. Objections to R&R due by 4/17/2009. Signed by Magistrate Judge Mark Hornsby on 3/31/09. (crt,Cassanova, M)

UNITED STATES DISTRICT COURT W E S T ER N DISTRICT OF LOUISIANA S H R E V EP O R T DIVISION

H E R N A N D O HALEY VERSUS W A R D E N WINN CORRECTIONAL CENTER

C I V I L ACTION NO. 06-cv-1039 J U D G E HICKS M A G I S T R A T E JUDGE HORNSBY

R E P O RT AND RECOMMENDATION I n t r o d u c t io n H e r n a n d o Cortez Haley ("Petitioner") was charged, along with two co-defendants, with aggravated burglary. Petitioner states in his petition that one co-defendant entered a p l e a of guilty to simple burglary and received a sentence of five years. The second c o - d e f e n d a n t had a jury trial and was found guilty of aggravated burglary and received a 3 0 - ye a r sentence. Petitioner pursued a third route, a bench trial before Judge Jeanette Ga rrett, but he was also found guilty of aggravated burglary. Petitioner was adjudicated a third -fel ony habitual offender, and he received an enhanced sentence of 30 years. Petitioner argued on direct appeal that the evidence was insufficient to support his c o n v i c ti o n , that the State did not prove that proper Boykin advice was given with respect to t h e prior convictions used to enhance the sentence, and that the sentence was excessive. State v. Haley, 873 So.2d 747 (La. App. 2d Cir. 2004), writ denied, 904 So.2d 728 (La. 2005). Petitioner's writ application to the Supreme Court of Louisiana raised only the s u f f i c ie n c y of the evidence claim. Tr. 401-10. Accordingly, Petitioner did not exhaust his

state court remedies with respect to the other two claims through the direct appeal process. O ' S u l l iv a n v. Boerckel, 119 S.Ct. 1728 (1999). The court gave Petitioner an opportunity to e l e c t how to proceed in light of that deficiency. Doc. 8. Petitioner elected to dismiss his u n e x h a u s t e d claims and proceed only with the sufficiency of the evidence claim. Docs. 15 a n d 19. The State was ordered to respond to the sufficiency claim, and it has filed a brief. T h e Relevant Evidence F ourtee n-year-o ld Chase Barnhill testified that he was alone at the home of his g r a n d p a r e n t s , Deputy Danny Wilburn and Bonnie Wilburn, when he heard a knock at the door. Chase looked out the peephole and saw a black male at the door and a black Caprice with tinted windows. He called his grandmother, who was at her nearby business, to see if s h e sent someone to the house to check on him, but Bonnie Wilburn did not answer the p h o n e . The doorbell then began to ring repeatedly, and someone started banging on the door. C h a s e hung up the phone and began to dial 911, but after he dialed the second digit, someone b r o k e down the front door of the house. Chase immediately ran out the back door, jumped t h e fence, and ran to his grandmother's nearby sandwich shop. C h a s e told his grandmother that someone was breaking into her house. He recalled this his grandmother called her husband or 911or both, and then Chase and his grandmother r a n out the front door, got in the car, and drove to the house. They saw the black Caprice l e a v in g the driveway, and they followed it. As they passed the house, they noticed that the f r o n t door was kicked in. Bonnie had Chase get a piece of paper. Bonnie was able to call

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o u t the license plate number of the black car, and Chase wrote it down. At one point, Chase r e c a ll e d , the black car pulled in a driveway, and Bonnie pulled in the driveway next to them. T h e car sat there for a couple of seconds, then the black car backed up and went back the way it had come from. Bonnie and Chase continued to follow the black car, which was driving fas t. Bonnie and Chase saw a police car coming their way, so they broke off their pursuit, t u r n e d around and followed the police car back to Bonnie's house. They told the police what t h e y had seen, and a radio dispatch was made to look for the black Caprice. Chase testified t h a t items stolen from him included a PlayStation, Fossil watch, and $15. Chase identified a picture of the black Caprice and recognized its license plate number. He also pointed out i te m s of property that were stolen from him and his grandparents that could be seen in the b a c k s e a t and on the back floorboard of the car. Chase admitted that the windows of the car h a d been tinted so dark that he could not see inside it. He also admitted that he never saw wh o or how many people came into the house. Tr. 183-93. Bonnie Wilburn testified that she immediately called 911 after Chase reported the b r e a k - in , and she asked a person at the store next door to call her husband, Sgt. Wilburn. She t e s ti f i ed that she actually blocked the black car in a driveway where it stopped, and she called o u t the license plate number twice so that Chase could write it down. Chase told her to get o u t of there because the people in the black car had guns, so she pulled into the next dr iv ew ay. Mrs. Wilburn admitted that she could not see the men in the car or even tell how

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m a n y men were inside, because the tint on the windows was so dark. When they left the dr iv ew ay, the men were driving "very fast" and running stop signs. Mrs. Wilburn said she f o l l o w e d the Caprice until she saw a police car driving towards her house, when she turned a r o u n d and followed the police. The minute Mrs. Wilburn and Chase got out of the car, C h a s e handed a police officer the paper with the license number on it. The officer imm ediate ly called and alerted other officers to the information about the car. Mrs. Wilburn s a w that the burglars had stolen her Direct TV system, her surround sound system, VCRs, a telephone answering machine, and the PlayStation. Several guns were taken from a gun rack and from under a bed. Tr. 194-205. Danny Wilburn, a sergeant with the Caddo Parish Sheriff's Office, testified that he g o t a call to alert him that his house had been burglarized. He left work to come home. On t h e way, he received a call to tell him that the suspects had been arrested on Linwood Avenue a t the Church's Chicken. Wilburn drove to the scene, and he saw the three men who had bee n arrested, including Petitioner. Wilburn testified that he kept deer rifles and shotguns in his home. One or two of the w e a p o n s were kept loaded, and one of the loaded weapons was taken during the burglary. Sgt. Wilburn viewed photographs of the backseat area of the black Caprice and identified s e v e r a l items of property, including firearms and ammunition, that were taken from his h o u s e . Wilburn testified that he thought a 12-gauge single-barrel shotgun was loaded when it was taken. Tr. 205-12.

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Lt. Kenneth Jackson of the Shreveport Police Department testified that he saw the b l a c k car as he sat at a red light. He had heard the recent radio alerts regarding the car. He b e g a n to follow it. Jackson admitted that he had a hard time seeing through the tinted w i nd o ws on the rainy day, but he said as cars approached he could see inside at times with t h e aid of their headlights. He first thought there were two persons inside, but he eventually m a d e out that there were three people in the car. Jackson broadcast over the radio that they were "three deep" in the car. Jackson followed the car, which was traveling at the posted s p e e d limit, but because he did not have a light bar, he stayed back and radioed information to other officers. Other units did respond, and when they were in place they signaled the b l a c k car to stop. While the black car was still rolling, the back passenger door quickly o p e n e d , and a black male exited and ran. After the car came to a stop, the other two suspects g o t out when they were ordered to do so. Jackson testified that the distance between where M r s . Wilburn stopped following the black car and where he saw it was about four to four and a half miles. The time of various radio communications indicated that approximately four m i n u t e s passed between those two events. Tr. 216-30. Cp l. David Walls testified that he saw the black male jump out of the back seat of the car, and he gave chase. He identified Petitioner in the courtroom as that man. Tr. 231-37. Cp l. Walls suffered a hamstring injury and had to drop out of the chase, but O f f i c e r F. P. McConnell was able to eventually flush the rather determined suspect from b e h in d some houses. After several tense moments of verbal commands at gunpoint,

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M cCo nnell was able to take the suspect into custody. McConnell identified Petitioner as the ma n he arrested. Tr. 237-43. Detective Kevin Goodwin testified that he searched the Caprice after the arrest. The f i r e arm s and ammunition were taken from the trunk of the car. One of the shotguns had a m m u n i t i o n on a belt around the stock (for easy access), but Goodwin did not recall that any o f the weapons actually had rounds in the chamber. The crime scene investigator was unable to gather fingerprints from any of the items, which Goodwin attributed to texture of the items a n d too much fingerprint dust on at least one item. There was testimony about a shoe print o n the front door of the burglarized house, but Goodwin said that no attempt was made at a s h o e print comparison. Tr. 249-55. S t a t e Court Rulings P e t i ti o n e r was charged with aggravated burglary, which La.R.S. 14:60 defined as "the u n a u t h o r iz e d entering of any inhabited dwelling ... where a person is present, with the intent to commit a felony or any theft therein, if the offender: (1) (2) (3) is armed with a dangerous weapon; or after entering arms himself with a dangerous weapon; or commits a battery on any person while in such place, or in entering or leav ing such a place."

J u d g e Garrett, the trial judge, ruled that the State had proved the elements of aggr avate d burglary beyond a reasonable doubt. She made a "specific finding" that Chase Barn hill was in the house at the time of the unauthorized entry. She next found that a burglar Page 6 of 11

o r burglars became armed with a dangerous weapon after entering. She cited Louisiana j u r is p r u d e n c e that establishes that the theft of dangerous weapons within the household s a t is f i e s that element of the crime. She accepted Sgt. Wilburn's testimony that he kept the 1 2 - g a u g e single-barrel shotgun loaded, to the extent the law required a weapon to be loaded t o be considered a dangerous weapon. She also accepted the testimony of the officers that P e t i ti o n e r was arrested after he fled the same car that was involved in the burglary a few m i n u t e s earlier. The judge found it "totally unreasonable that this defendant got in the car s o me time after the burglary occurred and before the chase began" a few minutes later. The j u d g e also found that Petitioner's flight and refusal to stop despite orders to do so was i n d i c at i v e of guilt. Tr. 265-68. T h e state appellate court reviewed the evidence at length. It noted the statutory d e f i n it i o n of aggravated burglary, as well as the statutory provision in La.R.S. 14:24 that all p e r s o ns concerned in the commission of a crime, whether they directly commit the act c o n s t it u t in g the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals and deemed equally guilty of the crime. T h e appellate court deferred to the trial judge's credibility assessments. The court n o t e d the compressed time frame betw e e n the crime and the traffic stop (and Petitioner's imm ediate flight), and agreed with the trial court that it was an "extremely unlikely a l t er n a t iv e hypothesis" that two men burglarized the Wilburn house and then just happened to pick up an innocent Petitioner afterwards, some time between when Mrs. Wilburn stopped

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t a i li n g the car and when the police began to follow it. Only about four minutes passed during w h i c h time the fleeing burglars could have picked up Petitioner, a suggestion the court found " u n w o r t h y of belief." As for the arming element, the appellate court cited Louisiana j u r is p r u d e n c e that recognizes that stealing a dangerous weapon satisfies the element of " a r m i n g himself." State v. Haley, 873 So.2d at 748-52, citing State v. Hall, 796 So.2d 164 L a . App. 2d Cir. 2001) ("The second tier of requirements may be satisfied by ... a perpetrator who arms himself (steals a dangerous weapon) during the offense").1 Analysis In evaluating the sufficiency of evidence to support a conviction "the relevant q u e s t io n is whether, after viewing the evidence in the light most favorable to the prosecution, a n y rational trier of fact could have found the essential elements of the crime beyond a reaso nable doubt." Jackson v. Virginia, 99 S.Ct. 2781, 2789 (1979). The trier of fact has b r o a d discretion to "resolve conflicts in testimony, to weigh evidence, and to draw reasonable

In State v. Delagardelle, 957 So.2d 825 (La. App. 5th Cir. 2007), a conviction for a g g r a v a te d burglary was affirmed in a case where the burglar took a knife from the k it ch e n counter and carried it to a bedroom. As in this case, the person inside the home r a n away as soon as the burglar entered the home. The police found the knife near a closet w h e r e they discovered the burglar. There was no evidence the burglar displayed the knife t o anyone, used the knife in a threatening manner, or otherwise actually used it as a w e a p o n . No witness even saw the knife in the burglar's hand, but it was proved by c i r c u m s ta n t i al evidence that the burglar possessed the knife while in the home. The c o n v i c ti o n was affirmed over a sufficiency of the evidence challenge that raised the "after e n t e r in g arms himself with a dangerous weapon" issue. The defendant filed a federal hab eas petition that raised the same issue. Relief was denied on the merits. Delagardelle v. Tappin, 2008 WL 2951219 (E.D. La. 2008). Page 8 of 11

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i n f e r en c e s from basic facts to ultimate facts." Id. The Jackson inquiry "does not focus on w h e t h e r 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 (19 93) . The Louisiana appellate court invoked, recited and applied the Jackson standard on Petiti o n e r's direct appeal, so its decision was not "contrary to clearly established Federal law ," and Petitioner can obtain habeas relief only if the State court's decision was an "unr easo nable application" of Jackson. 28 U.S.C. § 2254(d); Williams v. Taylor, 120 S.Ct. 1 4 9 5 , 1523 (2000); Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001). U n d e r the unreasonable application clause, a federal court is permitted to grant the writ if the state court has identified the correct governing legal principle from the Supreme Cou rt's decisions but unreasonably applied that principle to the facts of the prisoner's case. W i ll ia m s, 120 S.Ct. at 1523. Even if the federal court, in its independent judgment, has a firm c o n v i c ti o n that the state court was incorrect in its application of a federal constitutional p r i n c ip l e , that alone does not permit the federal court to grant habeas relief. Relief is not p e r m i t te d unless the state court decision was so wrong as to be objectively unreasonable. L o c k y e r v. Andrade, 123 S.Ct. 1166, 1175 (2003). And it is only the state court's ultimate d e c i s io n , not the quality of its analysis or opinion, that is at issue. Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002)(en banc).

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P e t i ti o n e r argues to this court that his flight could be explained by his knowledge of wa rrants for his arrest. He also continues to press the theory that he might have innocently c a u g h t a ride with the burglars after the crime. This court does not sit to judge the evidence a ne w . It is limited to determining whether the state court's decision was an objectively unre ason able application of Jackson. Petitioner has offered arguments that are possible but high ly unlikely under the evidence, and they were rejected by the state courts. This court c a n n o t say that the state court's decision was so wrong as to require the conviction to be v a c a t e d . This court has carefully reviewed the trial evidence, considered the state court d e c i s i o n s , and found those decisions to be reasonable. No more analysis is required to r e c o m m e n d that the petition be denied. A cc or di ng ly; I T IS RECOMMENDED that the petition for writ of habeas corpus be denied, and t h a t Petitioner's complaint be dismissed with prejudice. Objections U n d e r the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties a g g r i e v ed by this recommendation have ten (10) business days from service of this report and r e c o m m e n d a t i o n to file specific, written objections with the Clerk of Court, unless an e x t e n s io n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party's objections within ten (10) days after being served with a copy thereof. Counsel are

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d i r e c te d to furnish a courtesy copy of any objections or responses to the District Judge at the t i m e of filing. A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n set forth above, within 10 days after being served with a copy, shall bar that pa rty, except upon grounds of plain error, from attacking on appeal the unobjected-to p r o p o s e d factual findings and legal conclusions accepted by the district court. See Douglass v . U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc). THUS DONE AND SIGNED in Shreveport, Louisiana, this 31st day of March, 2009.

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