United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
SALLY SHUSHAN, District Judge.
This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact 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 in the United States District Courts. Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH PREJUDICE.
On April 6, 2009, petitioner, Oscar Dantzler, III, pleaded guilty to simple burglary under Louisiana law. On June 17, 2009, he was sentenced to a term of twelve years imprisonment; however, that sentence was suspended and he was placed on supervised probation for a term of five years. On July 13, 2010, his probation was revoked and he was ordered to serve the sentence originally imposed.
On August 11, 2010, petitioner filed with the state district court a "Motion to Review/Modify Sentence and Reconsider Revocation." That motion was denied October 6, 2010.
On June 27, 2011, petitioner filed with the state district court a "Motion to Reconsider Sentence and Consider Impact Recommendation." That motion was denied on June 28, 2011.
On March 14, 2012, petitioner filed with the state district court a "Motion for Recusal, " which he later supplemented on April 10, 2012. On April 19, 2012, that motion was dismissed when he failed to appear for the hearing scheduled on the motion.
Petitioner then filed with the state district court an application for post-conviction relief on or after July 8, 2012,  and a "Motion for Writ of Habeas Corpus, Release of Defendant" on May 17, 2013. The court denied relief orally on October 16, 2013,  and by written order on October 21, 2013.
On February 20, 2014, petitioner filed with the state district court a "Motion for Writ of Habeas Corpus, Release of Defendant and Defendant's Motion for an Expedited Hearing." That motion was denied on February 28, 2014.
On March 25, 2014, petitioner filed with the state district court a "Motion to Review/Modify Motion for Writ of Habeas Corpus, Release of Defendant and Motion to Reconsideration/Modify Motion for Writ of Habeas Corpus, Release of Defendant." That motion was denied on March 26, 2014.
On March 31, 2014, petitioner filed the instant federal application seeking habeas corpus relief. Although he presents his claims in a disorganized and rambling manner, the gist of his claims appears to be that he was denied due process and the effective assistance of counsel at his probation revocation hearing. The state filed a response, arguing, inter alia, that petitioner's claims are unexhausted and his application is untimely. Petitioner filed a reply to the state's response.
Pursuant to 28 U.S.C. § 2254(b)(1)(A), a petitioner normally must first exhaust his remedies in state court before seeking habeas corpus relief from the federal courts. "To exhaust, a petitioner must have fairly presented the substance of his claim to the state courts." Wilder v. Cockrell , 274 F.3d 255, 259 (5th Cir. 2001) (internal quotation marks omitted). Generally, the exhaustion requirement is satisfied only when the grounds urged in a federal petition were previously presented to the state's highest court in a procedurally proper manner according to state court rules. Dupuy v. Butler , 837 F.2d 699, 702 (5th Cir. 1988).
In Louisiana, the highest state court is the Louisiana Supreme Court. See La. Const. art. V, § 5(A). Because petitioner has filed no applications whatsoever with that court concerning the state criminal judgment challenged herein, any and all claims he is asserting in this federal proceeding are clearly unexhausted.
That said, it would not be in the interests of justice and judicial economy to dismiss petitioner's federal application without prejudice based on the lack of exhaustion. Because the application is also clearly untimely, it should instead be dismissed with prejudice on that basis. Williams v. Louisiana, Civ. Action No. 12-670, 2012 WL 5932229, at *4 (E.D. La. July 24, 2012), adopted, 2012 WL WL 5932072 (E.D. La. Nov. 26, 2012); Champ v. Cooper, Civ. Action No. 11-2187, 2012 WL 396214, at *3 (E.D. La. Jan. 12, 2012), adopted, 2012 WL 396149 (E.D. La. Feb. 7, 2012); see also Alexander v. Cain, Civ. Action No. 05-683, 2007 WL 121722, at *2 (E.D. La. Jan. 12, 2007) ("When faced with an untimely petition, the Court is statutorily compelled to dismiss the case for that reason. Whether the underlying claims have been exhausted will not change the timeliness of the petition." (citations omitted)).
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), petitions seeking relief pursuant to 28 U.S.C. § 2254 are subject to a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). Where, as here, such a petition challenges a judgment revoking probation, the one-year limitations period runs from the date on which probation was revoked. Irving v. 21st District Court, No. 09-2777, 2009 WL 2883034, at *3 (E.D. La. Aug. 31, 2009) (Africk, J., adopting the recommendation of Wilkinson, M.J.). As noted, petitioner's probation was revoked on July 13, 2010. Therefore, ...