United States District Court, W.D. Louisiana
October 20, 2014
TIMOTHY GUIDRY, LA. DOC #321539,
LOUISIANA STATE PENITENTIARY, Section P
REPORT AND RECOMMENDATION
C. MICHAEL HILL, Magistrate Judge.
Pro se petitioner Timothy Guidry ("Guidry") filed the instant petition for federal habeas corpus relief on July 28, 2014. Petitioner is an inmate in the custody of the Louisiana Department of Corrections, incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. By this proceeding, Guidry attacks his 1991 conviction for aggravated rape for which he is serving a life sentence imposed by the Sixteenth Judicial District Court for St. Martin Parish, Louisiana.
This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the Court. For the following reasons it is recommended that the petition be DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.
LAW AND ANALYSIS
This court's records demonstrate that petitioner has filed at least one previous federal petition for writ of habeas corpus in which he attacked this same conviction and sentence. Timothy Guidry v. Burl Cain, Warden, No. 6:00-cv-1074 (W.D. La. 2000). Guidry asserted the following claims for relief: (1) the trial court erred in denying petitioner's motion to suppress his confession; (2) the trial court erred in giving an unreasonable jury charge on reasonable doubt; (3) the trial court erred in allowing a prosecution witness to testify as an expert; (4) the trial court erred when it denied petitioner's motion for a new trial; (5) the evidence was insufficient to support petitioner's conviction; (6) Insufficient evidence based on different facts; and (7) ineffective assistance of counsel.
This petition was denied and dismissed with prejudice on July 7, 2000, following a Report and Recommendation by the Magistrate Judge, because the petition was barred by the one-year limitation period set forth in 28 U.S.C. § 2244(d). [ Id. at rec. docs. 3 and 5]. Guidry's request for a Certificate of Appealability was denied by the United States Fifth Circuit Court of Appeals on October 2, 2000. [ Id. at doc. 12, Guidry v. Cain, No. 00-30915 (5th Cir. 2000)]. On March 5, 2001, the United States Supreme Court denied certiorari. [ Id. at rec. doc. 13; Guidry v. Cain, 532 U.S. 908 (2001)].
Twelve years later, on March 7, 2013, Guidry filed a Motion for Relief from Judgment pursuant to FRCP Rule 60(b) in this same closed case. [rec. doc. 14]. In this "Motion" Guidry asserted that he was entitled to relief on the following grounds: (1) because he received ineffective assistance of trial counsel; and (2) under the United States Supreme Court's decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012). On June 5, 2013, following a Report and Recommendation by the Magistrate Judge, Judge Doherty deemed the Motion a second or successive habeas petition and accordingly, dismissed the "Motion" for lack of jurisdiction and alternatively, denied the Motion as untimely and without a basis in fact. [ Id. at rec. docs. 20 and 22]. Guidry's request for a Certificate of Appealability was denied by the United States Fifth Circuit Court of Appeals on November 15, 2013. [ Id. at doc. 29, Guidry v. Cain, No. 13-30686 (5th Cir. 2013)].
The instant petition was filed on July 28, 2014. Guidry asserts the following claims for relief: (1) prosecutorial misconduct; (2) the trial court abused its discretion by failing to grant petitioner a new trial; (3) ineffective assistance of trial and appellate counsel for (a) failing to raise the unconstitutionality of La. C.Cr.P. art. 413(B), (b) failing to argue the conditions of interrogation in connection with petitioner's Motion to Suppress his confession; (c) failing to utilize an OB/GYN independent expert; (d) failing to object to the expert testimony of witness Terry Ansemen; (e) failing to object to the reasonable doubt jury charge; (f) arguing claims (improper expert testimony and reasonable doubt jury charge claims) on appeal knowing that the errors had not been properly preserved for appeal; (g) failing to assert on appeal that the victim recanted her testimony; (h) failing to adequately present the findings of Dr. Kennedy on appeal; and (i) falsifying facts on direct appeal.
This is at least Guidry's second, and arguably his third, attempt to collaterally attack, in this Court, his Louisiana state court conviction and the sentence imposed by the Sixteenth Judicial District Court for St. Martin Parish, Louisiana, which was the subject of his previous federal petitions. The instant action is therefore unquestionably a § 2254 action which under 28 U.S.C. § 2244 is "second or successive".
The petition attacks the same conviction and sentence that was the subject of Guidry's two previous petitions. The claims raised herein either were or could have been raised in the previous petitions. Moreover, Guidry's first petition was denied and dismissed with prejudice as barred by the one-year time limitation set forth in 28 U.S.C. § 2244(d). Although a dismissal based upon the statute of limitation does not include an examination of the merits of the underlying substantive claims presented in the petition, such a dismissal is considered an adjudication of the merits for purposes of determining whether a subsequent petition is successive under the AEDPA.
As Guidry is obviously aware, given this Court's ruling on his prior "Rule 60(b) Motion", before a second or successive petition may be considered by this court, petitioner must obtain authorization to file the second or successive petition from the Fifth Circuit in accordance with 28 U.S.C. § 2244(b)(3)(A). The record does not show in this case that petitioner has received such authorization. Until such time as petitioner obtains said authorization, this Court is without jurisdiction to proceed. Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000); Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003).
The law is clear that this Court cannot entertain the merits of this petition without authorization from the Fifth Circuit as mandated by 28 U.S.C. § 2244(b)(3)(A). The record fails to show that petitioner has received such authorization from the Fifth Circuit. Therefore, the undersigned finds that this petition should be dismissed. Accordingly;
IT IS RECOMMENDED that the instant action be DISMISSED WITH PREJUDICE for lack of jurisdiction.
Under the provisions of 28 U.S.C. Section 636(b)(1)(C) and Rule 72(b), parties aggrieved by this recommendation have fourteen (14) days from service of this report and recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy of any objections or response to the district judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within fourteen (14) days following the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Association, 79 F.3d 1415 (5th Cir. 1996).
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Unless a Circuit Justice or District Judge issues a certificate of appealability, an appeal may not be taken to the court of appeals. Within fourteen (14) days from service of this Report and Recommendation, the parties may file a memorandum setting forth arguments on whether a certificate of appealability should issue. See 28 U.S.C. § 2253(c)(2). A courtesy copy of the memorandum shall be provided to the District Judge at the time of filing.