United States District Court, W.D. Louisiana
PATRICK GUILLORY, JR. LA. DOC #587254,
WARDEN LOUISIANA STATE PENITENTIARY
REPORT AND RECOMMENDATION
C. MICHAEL HILL, Magistrate Judge.
Pro se petitioner Patrick Guillory, Jr. filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 16, 2014. Petitioner is an inmate in the custody of the Louisiana Department of Corrections, incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. Petitioner attacks his July 18, 2011 conviction for attempted second degree murder for which he was sentenced on December 5, 2011 to forty years imprisonment by the Fifteenth Judicial District Court for Acadia Parish, Louisiana.
This matter has been referred to the undersigned for initial review, report, and recommendation pursuant to 28 U.S.C. § 636 and the standing orders of the court.
STATEMENT OF THE CASE
Petitioner was charged with attempted murder, home invasion, aggravated battery and violation of a protective order. On July 18, 2011, petitioner pled guilty to attempted murder and the remaining charges were apparently dismissed. Following a pre-sentence investigation, on December 5, 2011, petitioner was sentenced to serve forty years imprisonment.
Petitioner did not directly appeal his conviction.
Petitioner filed an Application for State Post-Conviction relief on October 9, 2012, in which he raised a single claim for relief: that petitioner was not properly advised of his right to trial by jury prior to acceptance of his guilty plea, thereby rendering the guilty plea invalid. On May 8, 2013, the Application was denied. In denying relief, the trial court held as follows:
Petitioner contends that the Court failed to specifically inform him during the Boykin Colloquy of his right to a trial by jury which rendered his guilty plea constitutionally defective under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The transcript of the colloquy reveals that although the Court informed Guillory of his right to a trial, the Court did not advise him of his right to a jury trial at the time that he entered his plea. State v. Santiago, 416 So.2d 524 (La. 1982), held constitutionally invalid a guilty plea in which the record showed a waiver of the right to trial, but failed to show a waiver of the right to trial by jury.
In determining whether a defendant understood his rights and validly waived them, the courts may look beyond the guilty plea colloquy to an expanded record to determine whether a voluntary waiver of rights occurred. State v. Dunn, 390 So.2d 525 (La. 1980). In that case, the Louisiana Supreme Court held that a plea of guilty form may be considered in determining whether defendant was adequately informed of his constitutional rights and made an express and knowing waiver of those rights.
Prior to his Boykinization, Guillory signed a plea form that states that he is giving up his "right to have a trial by a judge or a jury of 12 jurors; 10 of whom must agree as to [his] guilt to convict." During the colloquy, the Court questioned Guillory about his ability to understand the plea form. The Court determined that he could read and write, and specifically asked him, "Did you read and did you understand the plea form you signed" to which Guillory replied, "Yes, sir." The Court further asked if his attorney had gone over the plea form with him and answered all his questions, to which Guillory replied in the affirmative.
The record shows that the defendant was adequately informed of his rights and that he made an express and knowing waiver of those rights.
[Doc. 7, pp. 34-35 (emphasis in original)]
Petitioner sought writs in the Louisiana Third Circuit Court of Appeal. The writ application was denied by the Third Circuit on September 24, 2013, the Court finding "no error in the trial court's ruling." [Doc. 7, pg. 43, State v. Guillory, KH-13-0634 (La.App. 3rd Cir. 9/24/13)].
Petitioner sought writs in the Louisiana Supreme Court. The Louisiana Supreme Court denied writs without comment on May 2, 2014. State of Louisiana ex rel. Patrick Guillory, Jr. v. State of Louisiana, 2013-KH-2386, 138 So.3d 1243 (La. 5/2/2014).
Petitioner signed the instant federal habeas corpus petition on May 15, 2014 and it was received and filed by the Clerk of this Court on May 16, 2014. Petitioner asserts the same claim he raised in his State post-conviction proceedings: that petitioner was not properly advised of his right to trial by jury prior to acceptance of his guilty plea, thereby rendering the guilty plea invalid.
LAW AND ANALYSIS
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides that following examination of the pleadings by the court, "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified." See also Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) citing Rule 4, Advisory Committee Notes ("The district court has the power under Rule 4 to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state. This power is rooted in the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer.'").
Based upon the court's review of the pleadings and exhibits attached thereto, it is recommended that the petition be ...