Opinion
Civil Action NO: 00-1651; Section "C".
October 10, 2000.
ORDER AND REASONS
Before this Court is a petition for habeas corpus relief filled by Feltus Stewart, pursuant to 28 U.S.C. § 2254. As grounds for relief, Stewart makes two claims: (1) that his guilt was not proven beyond a reasonable doubt; and (2) that he was denied due process and a fundamentally fair trial as well as the effective assistance of counsel when the trial court denied his motion to continue.
Upon review of the record and the relevant law, this Court has determined that Stewart's petition for habeas should be denied for the reasons set forth below.
PROCEDURAL HISTORY
In April 1989 Stewart was charged in three counts of a five count indictment. In count three he was charged with co-defendant Louis Washington with violating La. R.S. § 40:966, for distribution of heroin on August 4, 1988. In count four, he was charged with Arthur Wilson with violating La. R.S. § 40:966, for distribution of heroin on September 8, 1988. In count five he was charged with co-defendant Clifton Guice with violating La. R.S. § 40:966, for possession with intent to distribute heroin on April 11, 1989. Stewart was tried separately from his co-defendants and, after a one day judge trial on March 12, 1991, was found guilty as charged. Stewart appealed his conviction to the Fourth Circuit Court of Appeals for Louisiana raising the same arguments as contained in this habeas petition. The appellate court affirmed the conviction but remanded Stewart's case for re-sentencing. State v. Stewart, 618 So.2d 1249 (La.App. 4 Cir. 1993). Stewart presented the same arguments concerning his conviction to the Louisiana Supreme Court, which denied his application. State v. Stewart, 625 So.2d 179 (La. 1993). Stewart was not re-sentenced, however, until February 3, 1997. On February 4, 1997, Stewart filed for a reconsideration of his sentence pursuant to La. C.Cr.P. art. 881.1. On April 8, 1997 the Fourth Circuit granted a writ of mandamus directing the court to rule on Stewart's motion to reconsider his sentence and also treated the writ of mandamus as a motion for appeal of his sentence. State v. Stewart, 97-K-0846 (La.App. 4 Cir. 4/8/97). On March 10, 1999, the Fourth Circuit rejected Stewart's argument that a lengthy delay in sentencing divested the trial court of jurisdiction of its sentencing power. State v. Stewart, 732 So.2d 74 (La.App. 4 Cir. 1999). In September of 1999, the Louisiana Supreme Court denied writ. State v. Stewart, 747 So.2d 1116 (La. 1999). Subsequently, Stewart filed his petition in this Court for habeas relief in May, 2000.
BACKGROUND FACTS
The Fourth Circuit Court of Appeals made the following findings in the defendant's direct appeal:
As part of an ongoing narcotics investigation, Detective Jimmy Penton and a confidential informant went to the location of Gravier and South Lopez Streets in a drug trafficking area known as "the alley" on August 4, 1988. Penton stopped in front of a house on South Lopez where five males were seated on steps. One of the men was defendant Stewart, and two others were Louis Washington and someone known as "Nipreman." Two others were not identified. Washington walked over to Penton's car while the informant got out of the car and spoke with defendant who had refused to approach the car. Both Washington and Nipreman told the defendant that Penton was okay and that Penton had been there before.
Washington asked Penton if he was ready for "the one," meaning a bundle of heroin. Penton told Washington that he was, and he showed Washington $450 in cash in response to Washington's request. Washington then turned to the defendant, whom he called "Buck," and said that it was okay. Washington told Penton to drive around the block and the informant reentered the car.
Washington and the defendant walked off together down Gravier towards South Salcedo while Penton drove around the block. After doing so, Penton was told by Washington to go around the block again. Penton did so, and when he returned, Washington flagged him down. Washington gave Penton the bundle of heroin, which contained twenty-five individual packets, and Penton gave him the money. Washington then gave the money to the defendant.
On September 8, 1988, Penton went back to the area where he saw defendant walking near Gravier and South Salcedo. Penton approached the defendant and attempted to shake hands with him, but the defendant refused to do so. Penton talked to him about buying drugs, and the defendant said that "Shakey," referring to Arthur Wilson, would take care of him. When Wilson then walked up, the defendant told him that Penton was "ready for one," meaning one bundle.
Wilson went around the corner, and he returned a few minutes later. He handed Penton a ball of tin foil which contained twenty-four individual packets of heroin. The defendant and Wilson walked away, but Penton called out to the defendant to ask who wanted the money. The defendant pointed to Wilson who walked over to Penton to receive $400 in cash. The defendant and Wilson then walked away together.
On April 11, 1989, the defendant was arrested at a barbershop in the area. when he was arrested, the police asked him if he had a key for 713 South Salcedo where they found 626 packets of heroin and a large quantity of cash. The house was rented to Clifton Guice, and personal papers in his name were there. When Stewart was searched, a set of keys was found on his person and one of those keys fit the door at 713 South Salcedo. During previous surveillance of the house, officer Wayne Farve saw the defendant enter it on more than one occasion, but he could not remember the dates. The affidavit to the search warrant, which was admitted into evidence, stated that Farve saw the defendant enter the house on April 6, 1989, by using a key. The affidavit further stated that the defendant was seen entering and existing the house in August and September, 1988.Stewart, 618 So.2d 1249 (La.App. 4 Cir. 1993)(unpub.)
PROCEDURAL PREREQUISITES FOR HABEAS RELIEF
Before reaching the merits of Stewart's petition, procedural considerations must be addressed. Here, it is undisputed that the Antiterrorism and Effective Death Penalty Act (AEDPA), including the amendments to 28 U.S.C. § 2254, applies, that the petitioner is "in custody;" that venue is proper; that the petition is timely and that the petitioner has exhausted all claims raised in his federal petition. No issue of precedural default is raised in these proceedings. In addition, no argument is made that the habeas application is filed so late as to prejudice the State's ability to respond, nor is such an argument warranted under the circumstances. Finally, it is clear that the petitioner's claims are cognizable in a federal habeas corpus proceeding.
Stewart's entitlement to an evidentiary hearing is governed by 28 U.S.C. § 2254(e)(2) (West 2000). If an applicant has failed to develop the factual basis of a claim in State court proceedings, the district court may hold an evidentiary hearing only if the applicant can show either: 1) the claim relies on a new retroactive rule of constitutional law previously unavailable; or 2) the claim relies on a factual basis that could not have been previously discovered by the exercise of due diligence. Id. § (e)(2)(A)(I) (B). In the instant case Stewart alleges no retroactive constitutional law that was unavailable previously, nor do his claims rely on findings of fact that were previously undiscoverable. Thus, Stewart is not entitled to an evidentiary hearing.
For purposes of this Court's review under the AEDPA, habeas claims fall into one of three categories: 1) questions of fact; 2) questions of law; and 3) mixed questions of law and fact. Questions of fact are examined for clear error. 28 U.S.C. § 2254 (d). Habeas relief on questions of fact is available only if the Court finds that the state court made a factual determination that was unreasonable in light of the evidence presented. 28 U.S.C. § 2254(d)(2). A prisoner has the burden of rebutting the presumption of factual correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Question of law are reviewed de novo. 28 U.S.C. § 2254(d)(1). Habeas relief may be granted only if it shown that the state court decision rested on a legal determination contrary to clearly established Supreme Court precedent. Id. In the case of Williams v. Taylor, ___ U.S. ___, ___, 120 S.Ct. 1495, 1521, 146 L.Ed.2d 389 (2000) the Court held: "when a state-court decision unreasonably applies the law of this Court to the facts of prisoner's case, a federal court applying § 2254(d)(1) may conclude that the state-court decision falls within that provision's "unreasonable application" clause." See also, Lauti v. Johnson, 102 F.3d 166, 169 (5th Cir. 1996), cert. denied, 521 U.S. 1126 (1997) (finding that mixed questions of law and fact are reviewed de novo by independently applying the law to the facts found by the district court, unless those factual determinations are clearly erroneous). Both the ultimate determination of ineffective assistance of counsel and insufficient evidence have been found to involve mixed questions of fact and law. Walbey v. Johnson, 2000 WL 1238901 (S.D.Tex.); Bridges v. Cain, 1998 WL 169699 (E.D.La.).
SUFFICIENCY OF THE EVIDENCE
When Stewart was tried and convicted in March of 1991, La. R.S. § 40:966 provided:
A. Manufacture; Distribution. Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule I.
La. R.S: § 40:966(A) (West 1991).
The Louisiana Criminal Statutes also provides for principal liability for the commission of a crime:
All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime are principals.
La. R.S. § 14:24 (West 1991).
The Court's review is limited to a clearly erroneous standard concerning questions of fact elicited at trial, but, whether those facts were sufficient to prove Stewart's guilt beyond a reasonable doubt is a matter of law that is reviewed de novo. Examining, all the evidence in a light most favorable to the verdict the Court must determine whether a rational trier of fact could have found that Stewart violated La. R.S. § 40:966 beyond any reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979).
Counts 12 Distribution of a Controlled Dangerous Substance
To support a conviction for distribution of heroin the State must show that Stewart delivered heroin either by physical delivery, administration, subterfuge, or furnishing or filing a prescription. See La. R.S. §§ 40:961-966. Distribution requires proof of only general criminal intent. See State v. Williams, 352 So.2d 1295 (La. 1977).
The State is not required to show that the defendant actually had possession of the drug. See State v. Parker, 595 So.2d 765 (La.App. 4 Cir. 1992). A defendant may be convicted as a principal by evidence showing that he has merely aided and abetted the commission of the offense. Id. at 767. Aiding and abetting occurs when the defendant is concerned in the commission of the offense, counseling or procuring another person to commit a prohibited act, or, associating with others in the commission of a crime. See State v. Long, 643 So.2d 132, 134 (La. 1994); State v. David, 76 So.2d 1, 1 (La. 1954); See also La. R.S. § 14:24.
Stewart argues that he was never seen in possession of the heroin that was purchased by officer Penton from Louis Washington and Arthur Wilson. Stewart states that he refused to conduct business with Penton and was not seen taking money for the illegal transactions. When specifically asked by Penton for drugs Stewart referred Penton to Wilson and did not deal with Penton directly. Further, Stewart alleges that there was no proof of his leadership in a drug ring to implicate principal liability. Stewart also argues that his mere presence in a drug area is insufficient to prove constructive possession of the heroin. See State v. Jones, 544 So.2d 636 (La.App. 3 Cir. 1989); State v. Walker, 369 So.2d 1345 (La. 1979).
The Fourth Circuit apparently concluded that Stewart took money from the drug transactions on August 4, 1988 and September 8, 1988. The record, however, indicates that no one actually saw Stewart take any money from the September 8, 1988 transaction to support a finding of principal liability. Agent Penton who conducted the drug transaction related the following:
Q: The drug contraband that you would have received on that date, September 8th of 1988, who did you receive it from?
A: I received it from Arthur Wilson. . . .
Q: On that particular day, did you ever see Mr. Stewart in possession of any drug contraband at all?
A: No, sir.
Q. Any did you ever see Mr. Stewart in possession of any large quantities of currency?
A: No, sir.
Trial Transcript at 30-31, State v. Stewart, No. 333-776 (Section "D" Criminal District Court Parish of Orleans 3/12/91).
Accordingly, while the evidence supports a finding that Stewart received the money from the August 4, 1988 transaction, Stewart was not seen receiving money from the September 8, 1988 drug deal. All other facts relied on by the Fourth Circuit are clearly supported in the record. In addition, with regard to the September 8, 1988, transaction, there was evidence presented at trial that Stewart referred the potential buyer to Wilson, and that the transaction was then completed. This is sufficient evidence to support liability as a principal under the limited scope of review applicable to factual findings.
In many of the reported cases in Louisiana involving principals to a distribution of contraband offense, the principal has played an active role in orchestrating the sale, even without necessarily possessing the drugs involved. In State v. Goins, 568 So.2d 231 (La.App. 3 Cir. 1990), writ denied, 573 So.2d 1117 (La. 1991), a state witness offered direct evidence that the defendant totally orchestrated the narcotics purchase by initiating the drug transaction, and deciding the time and place where they would later meet to complete the drug transaction. In that case, the defendant drove the State's witness to two locations for the specific purpose of "finding cocaine to sell him." Id. at 236.
Likewise, in State v. Parker, 595 So.2d 765, 766 (La.App. 4 Cir. 1992), the defendant flagged down an undercover officer and informed the officer that his brother-in-law had crack cocaine for sale. The defendant entered the officer's vehicle and directed the officer to a street corner and arranged for the purchase by the undercover officer of two rocks of cocaine for $ 20. Id. The court found that any rational trier of fact could have found the defendant aided and abetted in the commission of the crime of distribution of cocaine. Id. at 767.
Also, State v. Fontenot, 524 So.2d 867, 868 (La.App. 3 Cir. 1988), the defendant allegedly arranged for a sale of marijuana through a confidential informant to an undercover officer. The defendant in that case accompanied the source and the undercover agent outside a bar and was present when the transaction occurred. Id. After the exchange, the defendant commented about the high quality of marijuana that the officer had purchased. Id. The Third Circuit concluded that this evidence, as it stood, was sufficient to convict the defendant as a principal to the crime of distribution of marijuana, however the court reversed the conviction for other reasons. Id. at 870.
The Second Circuit held in State v. Cook, 460 So.2d 1075 (La.App. 2 Cir. 1984), writ denied, 466 So.2d 465 (La. 1985), that instructions given by the defendant to the officer to drive one block to a street where a male would be waiting to hand the man the money and to receive from him the marijuana, constituted aiding and abetting in the commission of the offense of distribution of marijuana. Likewise, in State v. Rexrode, 536 So.2d 671, (La.App. 3 Cir. 1988), the defendant's action in indirectly procuring the person who actually consummated the sale was held to be sufficient to show that he aided the illegal distribution of cocaine.
In State v. Parker, 627 So.2d 210 (La.App. 4 Cir. 1993), writ denied, 634 So.2d 403 (La. 1994), the defendant's participation in the distribution of cocaine was much more limited than the participation of the defendants in the aforementioned cases. There, an agent negotiated with a third person for the purchase of two rocks of cocaine for $ 50. Id. at 211. The defendant was not involved in locating the seller or the buyer, or in introducing them, or in assisting them in the transaction, or negotiating the price or quantity. Id. at 211-12. Rather, the defendant's role was limited to examining the cocaine after the buyer and seller agreed to the exchange. Id. That evidence alone did not prove beyond a reasonable doubt that the defendant aided or abetted or counseled the third party seller to distribute the cocaine to the undercover agent. Parker, 627 So.2d at 213.
In State v. Vigers, 670 So.2d 403, 404-405 (La.App. 3 Cir. 1996), defendant was the first person of the group to approach an undercover agent's vehicle. Defendant asked the agent if he wanted to spend "a little paycheck." Id. Defendant then waved in another man to make the transaction. Id. At the same time the cocaine was distributed, defendant grabbed a twenty dollar bill. Id. As the police vehicle drove off, the videotape showed the defendant conversing with the other members who approached the car, including the man who actually transferred the drugs. Vigers, 670 So.2d at 405. Accordingly, the court determined that there was sufficient evidence to prove that the defendant was an active participant in the distribution of cocaine. Id.
A review of the facts and the relevant case law reveals that the State court could have reasonably concluded that Stewart was guilty beyond a reasonable doubt. The instant case is similar to Cook, Rexrode and Vigers. Like the principals in those cases, Stewart indirectly procured the person who actually consummated the sale and instructed the buyer on how to obtain the drugs. In the first sale, on August 4, 1988, the record indicates that Washington sought Stewart's assent to make the drug deal by stating "he's okay" and that "[h]e's been back here before." Stewart was also the one who motioned the confidential informant out of the car. Stewart accompanied Washington to obtain the drugs and was observed receiving money from the transaction after Washington had made the illicit exchange with Penton.
In the second transaction, on September 8, 1988, Penton directly approached Stewart for some heroin. Stewart responded that he did not like white people, and that the had served thirteen years because of white people. Rather than turn Penton away, however, Stewart said that "my man Shakey will take care of you." Stewart then directed Arthur Wilson to fetch the heroin. When Stewart and Wilson walked off after Wilson handed over the drugs, Penton called out to ask who wanted the money. Stewart pointed to Wilson who retrieved the cash.
Stewart's actions are not indicative of the actions of an innocent bystander. Unlike Parker, Stewart was involved in locating the seller, in introducing them, and in assisting in the transaction by either procuring drugs or administering the sale. Accordingly, in light of the above jurisprudence, and reviewing the facts in a light most favorable to the verdict, the court had sufficient evidence to find Stewart guilty beyond a reasonable doubt in regards to both transactions under the doctrine of principal liability.
Count 3 — Possession with Intent to Distribute a Controlled Dangerous Substance
In relation to Stewart's conviction on one count or possession with intent to distribute, the Fourth Circuit emphasized the fact that Stewart had a key to the apartment at 713 South Salcedo. At trial, officer Wayne Farve gave the following testimony relating the course of events after Stewart was arrested and moved to the location of 713 South Salcedo:
Q And when you took him back to the premises located at 713 South Salcedo, how did — how did you attempt to gain entry to that?
A The doors to 713 South Salcedo was (sic) already forced open by myself and officer Clark. As we tried the keys seized from Mr. Stewart to the top lock of that door that was not forced open, that key indeed fit the lock. It opened and unlocked that particular lock.
Q Did you attempt to use the key prior to kicking the door in?
A Mr. Stewart wouldn't give us the keys, and during that — during the course of that investigation, circumstances that came to use made us act in the capacity where we had to get into the house without bickering with Mr. Stewart over the keys.
Trial Transcript at 63, State v. Stewart, No. 333-776 (Section "D" Criminal District Court Parish of Orleans 3/12/91). Viewing findings of fact on a clearly erroneous standard, the State court did not err when it held that Stewart had free access to the apartment at 713 South Salcedo.
Possession of heroin may be established by showing that the defendant exercised either actual or constructive possession of the substance. See State v. Jackson, 557 So.2d 1034, 1035 (La.App. 4 Cir. 1990). "Actual possession" means having an object in one's possession or on one's person in such a way as to have direct physical contact with and control of the object. State v. Camp, 517 So.2d 1202, 1204 (La.App. 4 Cir. 1987). "Constructive possession" means the object is subject to one's dominion and control and one has knowledge of its existence. State v. Edwards, 354 So.2d 1322 (La. 1978); State v. Alford, 323 So.2d 788 (La. 1975). Guilty knowledge is an essential element of the crime of possession of illegal drugs, and such knowledge may be inferred from the circumstances. See State v. Lavigne, 675 So.2d 771, 779 (La.App. 4 Cir. 1996), writ denied, 685 So.2d 140 (La. 1997); State v. Riley, 587 So.2d 130 (La.App. 2 Cir. 1991). The determination of whether there is possession of cocaine sufficient to convict depends on the facts peculiar to each case. See State v. Trahan, 425 So.2d 1222 (La. 1983).
Among the factors to be considered in determining whether the defendant exercised dominion and control sufficient to constitute constructive possession are: whether the defendant knew that illegal drugs were present in the area; the defendant's relationship to the person in actual possession; whether there is evidence of recent drug use; the defendant's proximity to the drugs; and any evidence that the area is frequented by drug users. See State v. Coleman 593 So.2d 907, 909 (La.App. 4 Cir. 1992); State v. Harris, 585 So.2d 649, 651 (La.App. 4 Cir. 1991); State v. Tasker, 448 So.2d 1311, 1314 (La.App. 1 Cir. 1984), writ denied, 450 So.2d 644 (La. 1984).
Since each case must be decided on its own facts, it is helpful to review a number of cases from the Louisiana State courts to give guidance in determining what facts constitute constructive possession of drugs or drug paraphernalia.
In State v. Riley, 587 So.2d 130, 132 (La.App. 2 Cir. 1991), 33 bags of cocaine were found in a room that was registered to the defendant, and which also contained his wallet and driver's license. The defendant had the key to the room, and no one else was in the room. Id. The defendant was also in possession of 12 grams of cocaine when arrested in his truck. Id. The court found the evidence sufficient to support a conviction for possessing the cocaine found in the room. Id. at 134.
In State v. Hughes, 587 So.2d 31, 34-35 (La.App. 2 Cir. 1991), writ denied, 590 So.2d 1197 (La. 1992), the defendant was walking out of a bedroom where a bag of marijuana was found in plain view, and paraphernalia and more marijuana was found hidden in the room and throughout the house. The defendant was an occupant of the house and admitted to selling drugs. Id. The court found that the evidence was sufficient to support a finding of constructive possession. Id. at 44.
Other cases illustrate the circumstances in which the courts have found that the evidence was not sufficient to support a verdict of guilty:
The case of State v. Dunn, 446 So.2d 829, 830 (La.App. 2 Cir. 1984), involved a defendant who was not present on the premises at the time the search warrant was executed. The defendant had given the address of the searched apartment as his own, but he had not stayed there the day or night before the warrant was executed. Id. The court noted, inter alia, that the defendant did not have a key or free access to the premises, and held that the evidence did not support a finding that he had constructive possession of the drugs found in the apartment. Id. at 831.
In State v. Alford, 323 So.2d 788, 789 (La. 1975), the lessee and occupant of the house were named in the search warrant, but not the defendants. The house was unoccupied at the time of the search, and a small amount of marijuana was found hidden throughout the house. Id. The defendants drove up to the house during the search and quickly drove away. Id. When apprehended moments later, they admitted that they had been staying at the house for about three weeks. Id. No contraband was found in the car. Alford, 323 So.2d at 790. The court found that the evidence was not sufficient to support a conviction for possession, noting that the State had failed to prove that the defendant had any knowledge that the contraband was in the house, that they knew or were associated with the occupant, that they had access to the house, that they had been in the home on the morning of or the day preceding the search, that they had drugs in their possession, or that they had any control of the drugs found on the premises. Id. at 791.
In State v. Cann, 319 So.2d 396, 397 (La. 1975), when a search warrant for an apartment was executed, officers found the defendant in a bedroom behind locked doors. No contraband was found on him or in the room where he was found. Id. Marijuana was found in the kitchen and in the outside garbage. Id. The apartment belonged to someone else, and other people were found in the apartment. Id. The court found that the evidence was not sufficient to uphold a finding that the defendant had constructive possession of the drugs. Cann, 319 So.2d at 400. There was no evidence that the defendant knew that contraband was in the house, that he lived there, that he had been in the apartment on other occasions, that drugs were found on the defendant or in the area of the apartment where he was found, or that he had or shared possession, dominion, or control over the marijuana in the house. Id.
In State v. Walker, 369 So.2d 1345 (La. 1979), a search warrant was issued for the residence of someone other than the defendant. The defendant emerged from a rear bedroom that had been converted into a lounge area. Id. A search of his pockets revealed a matchbox containing contraband pills. Id. These pills were excluded from evidence. Id. at 1346. Other illegal drugs were found in the freezer compartment of the refrigerator, in a cigarette pack in the rear bedroom, and on the ground outside the bedroom window. Walker, 369 So.2d at 1345. The court noted that the state had shown that the defendant was closer to some of the drugs at the time the police entered the residence than was the named resident. Id. at 1346. Even so, the court stated that, once the pills found on the defendant's person were excluded, the State had presented no evidence to show that the defendant knew, or had reason to know, that drugs were present on the premises, or that he exercised control over any of the drugs seized and admitted into evidence. Id. at 1346-47.
In State v. Harris, 597 So.2d 1105, 1107 (La.App. 2 Cir. 1992), the defendant was sitting on the couch in the living room of a residence with a female friend. When police arrived the defendant got up and walked around to the back of the couch before being ordered by police to sit back down on the couch. Id. A search of the house revealed a matchbox containing cocaine behind the couch where the defendant had briefly stood. Id. Drug paraphernalia was found in another room of the house. Id. The defendant did not live in the residence where the cocaine was found. Harris, 597 So.2d at 1107. The court noted that the arresting officer had admitted that it was possible for either the defendant or his lady friend to have put the cocaine behind the couch, and both had been near the place where the cocaine was found. Id. at 1108. The court held that the evidence was not sufficient to uphold a finding of possession of cocaine. Id.
Stewart, in his brief, urges the court to follow State v. Walker, 514 So.2d 602 The court specifically found that:
The testimony at trial only established that Brumfield was found inside the residence along with several other persons who were released by the police. There was no evidence as to where in the house Brumfield was found nor was there any evidence presented as to her proximity to the location of the cocaine or drug paraphernalia found on the premises. See, State v. Maresco, 495 So.2d 311 (La.App. 4th Cir. 1986). The only evidence presented was a copy of an old lease in Brumfield's name found in the master bedroom for an apartment on Congress Street. This single document standing alone is insufficient for a rational trier of fact to find that Brumfield exercised dominion and control over 1332 Clouet Street to satisfy the requirements of constructive possession. Thus, the state failed to provide sufficient evidence to substantiate a finding of guilty to possession of cocaine as to Janice Brumfield.Walker, 514 So.2d at 605.
Neither Walker, nor other cases finding that the defendant did not constructively possess contraband is on point with the present case. No evidence was presented that Brumfield possessed a key to the premises, knew where the drugs were located or that Brumfeild had engaged in prior drug sales at the residence. In light of the above Louisiana jurisprudence, a finding that Stewart constructively possessed the heroin found in his co-defendant's apartment is supported by the evidence. Stewart certainly knew that illegal drugs were in the area as he was a first hand observer of drug transactions. Stewart was closely associated the co-defendant Clifton Guice who kept the drugs in his apartment. Stewart was previously involved in narcotic sales in the area. Undercover officers saw Stewart entering and leaving the apartment on several prior occasions. Stewart possessed a key that gave him access to Guice's home and the packets of heroin. Furthermore, police had targeted the area of Guice's apartment (the "alley") as a hotbed for illegal drug activity, and the area was frequented by Stewart. Given all these facts, there was sufficient evidence upon which a rational trier of fact could conclude beyond a reasonable doubt that the defendant was in constructive possession of the contraband found in the apartment.
With regard to the requisite intent, narcotics offenses involving possession with intent to distribute require proof of specific intent. See State v. Ramoin, 410 So.2d 1010 (La. 1981); State v. Elzie, 343 So.2d 712 (La. 1977). Intent to distribute may be inferred from the circumstances. See State v. Hearold, 603 So.2d 731 (La. 1992); State v. Dickerson, 538 So.2d 1063 (La.App. 4 Cir. 1989). For example, the amount and form of a controlled dangerous substance constitute evidence from which a jury may infer an intent to distribute the particular substance. See State v. Duncan, 420 So.2d 1105 (La. 1982). However, mere possession of a controlled dangerous substance is not evidence of intent to distribute that substance unless the quantity is so large that no other inference is reasonable. See State v. Greenway, 422 So.2d 1146 (La. 1982).
In Hearold, the Louisiana Supreme Court listed five factors, originally set forth in State v. House, 325 So.2d 222 (La. 1975), that are helpful in determining whether circumstantial evidence is sufficient to prove the intent to distribute a controlled dangerous substance:
(1) whether the defendant ever distributed or attempted to distribute the drug; (2) whether the drug was in a form usually associated with possession for distribution to others; (3) whether the amount of drug created an inference of an intent to distribute; (4) whether expert or other testimony established that the amount of drug found in the defendant's possession is inconsistent with personal use only; and (5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute.Hearold, 603 So.2d at 735.
In the instant case, Stewart's intent to distribute heroin can be inferred from the circumstances. A trier of fact could reasonable infer that the six-hundred and twenty-six packets of heroin seized from Guice's apartment, were not intended for individual use. See State v. Trahan, 425 So.2d 1222 (La. 1983) (stating that possession of enough marijuana for 1,600 cigarettes, plus paraphernalia, is sufficient to prove intent to distribute); State v. Sibley, 310 So.2d 100 (La. 1975) (stating that possession of enough marijuana for 600 cigarettes sufficient to prove intent to distribute); Compare, State v. Fisher, 628 So.2d 1136, 1142 (La.App. 1 Cir. 1993), writ denied, 637 So.2d 476 (La. 1994) (determining that possession of 20 rocks of cocaine not sufficient to support an inference of intent to distribute); State v. Porter, 547 So.2d 736 (La.App. 3 Cir. 1989) (finding that possession of 0.6 grams of cocaine did not support inference of intent to distribute). Also, Stewart was associated with two previous sales of heroin to undercover police officers, and the "packets" of heroin were in the same form as those previously sold to officer Penton.
Accordingly, the court did not err in finding that Stewart intended to distribute at least some of the six-hundred and twenty-six packets of heroin seized at Guice's apartment because Stewart had constructive possession over the drugs in Guice's apartment in that Stewart had a key, Stewart knew illegal drugs were in the area, Stewart had a close relationship with Guice, there was recent evidence Stewart was dealing drugs, Stewart was arrested in close proximity to Guice's apartment, and the area was known for drug use.
INEFFECTIVE ASSISTANCE OF COUNSEL, FAIR TRIAL, DUE PROCESS
Central to this claim is the denial of Stewart's Motion to Continue when Stewart alleged that his defense counsel had only been appointed that day and that two witnesses were not present to testify on behalf of Stewart on the day of trial. Stewart, 618 So.2d 1249. The Fourth Circuit determined that Stewart did not meet the procedural requirements necessary to obtain a continuance on those grounds. Id.
A motion for a continuance based upon the absence of a witness must state:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witnesses at trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.Id. (citing, La. C.Cr.P. art. 709).
The Fourth Circuit then held:
Although the defendant may have exercised due diligence with regard to the subpoena for Kelly, there is nothing in the record showing that defendant presented any evidence regarding the first two criteria set forth in Article 709. The defendant has not shown what the expected testimony was to be, its materiality, or that the witnesses would be available for a subsequent trial. Therefore, the trial court did not err in denying a continuance on this basis.Id. (citations omitted).
These requirements for a continuance in a criminal trial have been in effect for the past hundred years. See, State v. Leary, 111 La. 301; 35 So. 559 (La. 1903) (denying continuance when party did not set forward names, residence, materiality of facts or why their presence could not be had); State v. Polk, 247 So.2d 853 (La. 1971) (denying Motion to Continue based on absence of witness when defendant did not meet the requirements of Article 709); State v. Chisolm, 691 So.2d 251, 253-54 (La.App. 4 Cir. 1997), writ denied, 701 So.2d 195 (La. 1997) (denying continuance when clerk did not issue subpoenas for defendant's alibi witnesses when defendant failed to meet the requirements of Article 709); Again, under the limited review available in this Court, habeas relief is not available on this argument.
Ineffective assistance of counsel claims are analyzed under the two-prong test employed in Strickland v. Washington, 466 U.S. 668; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). First, "the [petitioner] must show that counsel's performance was deficient. This requires a showing that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-688. "It is necessary to judge . . . counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Lockhart v. Fretwell, 506 U.S. 364; 371, 113 S. Ct. 838; 122 L.Ed.2d 180 (1993) (quoting Strickland, 466 U.S. at 690). The petitioner must prove that the conduct of trial counsel fell below the constitutional minimum guaranteed by the Sixth Amendment. See United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994). Analysis of counsel's performance must take into account the reasonableness of counsel's actions in light of all the circumstances. See Strickland, 466 U.S. at 688-689. Petitioner "carries the burden of proof . . . and must overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance." Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986), cert. denied, 479 U.S. 1021, 107 S.Ct. 678, 93 L.Ed.2d (1986); Hayes v. Maggio, 699 F.2d 198, 201-202 (5th Cir. 1983).
Second, the petitioner must show that the deficient performance prejudiced the defense. This requires showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688-689. The Strickland court defined a reasonable probability as "a probability sufficient to undermine confidence in the outcome." Id. at 694. In making a determination as to whether prejudice occurred, courts must review the record to determine the "relative role that the alleged trial errors played in the total context of trial." Crockett, 796 F.2d at 793. Failure to establish either prong is fatal to the claim. Id.
Whether Stewart was deprived of effective assistance of counsel or not is a matter the court need not reach because Stewart fails the second prong of the Strickland test. In Stewart's brief he cites two witnesses which he would have called at trial and gives the gist of what testimony he hoped to elicit from each.
Stewart wished to call as a defense witness Walter Kelly. Stewart states that had Mr. Kelly appeared for trial he would have testified that he had been acquainted with Stewart for a number of years and that he daily visited with Stewart. Mr. Kelly also was acquainted with Stewart's co-defendants as his barber shop was located near 713 South Salcedo where the drugs were discovered, Mr. Kelly would have further testified that Stewart was not a drug dealer and that he was in the barber shop with him at the time Penton alleges that he engaged Stewart in the September 8, 1988 transaction.
Stewart's second witness he wished to call was Arthur Wilson. Wilson would have testified that the drugs sold to Officer Penton did not belong to Stewart and that Stewart did not receive any money from the transactions.
Reviewing these statements in the total context of the trial, the court cannot find a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different and undermine confidence in the outcome at trial. First, whether Stewart actually owned the drugs or actually received money from the transactions are not detrimental to a finding of principal liability. Stewart need not have dealt the drugs himself, but, must only have been concerned in the commission of a crime, whether present or absent, whether he aided and abetted in its commission, or directly or indirectly counseled or procured another to commit the crime. See La. R.S. § 14:24. Accordingly, the Court cannot say that if Stewart's counsel had properly followed the procedural requirements for a continuance based on the absence of witnesses at trial the outcome would had been any different.
CONCLUSION
For purposes of the limited review that can be taken by this Court, Stewart has not established that the State presented insufficient evidence to prove his guilt beyond a reasonable doubt relative to all three counts of his indictment. Furthermore, Stewart has failed to show error in failing to obtain a continuance or ineffective assistance of counsel sufficient to warrant habeas relief
Accordingly,
IT IS ORDERED that the application for writ of habeas corpus under 28 U.S.C. § 2254 filed by FELTUS STEWART is DENIED.