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Burgo v. Warden Louisiana State Penitentiary

United States District Court, W.D. Louisiana

March 30, 2015

DONALD BURGO,
v.
WARDEN LOUISIANA STATE PENITENTIARY, Section P.

REPORT AND RECOMMENDATION

C. MICHAEL HILL, Magistrate Judge.

Before the court are various pleadings which have been construed as petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by pro se petitioner Donald Burgo on February 10, 2015. Petitioner is an inmate in the custody of the Louisiana Department of Public Safety and Corrections, incarcerated at the Louisiana State Penitentiary in Angola, Louisiana.[1]

In his rambling pleadings, Burgo appears to challenge his 2006 convictions for cruelty to the infirm, entered in the 16th Judicial District Court for St. Mary Parish, and his subsequent August 30, 2006 adjudication as an habitual offender, for which he is serving an eight year concurrent sentence.[2] Petitioner additionally complains about events connected to the succession action of his adopted father, James Samuel Burgo.[3]

By separate pleading [rec. doc. 9], Burgo seeks a preliminary injunction to prohibit Warden Cain and the State of Louisiana from enforcing certain restrictions upon his release from prison, as well as an injunction against attorney Robert P. Fuhrer, who presumably represented Burgo's daughter (the decedent's granddaughter) and adoptive mother (Lois Sampey Burgo) against petitioner's challenges in the succession proceeding, from taking action on behalf of his clients.[4]

LAW AND ANALYSIS

This court's records demonstrate that petitioner filed three previous federal petitions for writ of habeas corpus in which he attacked these same convictions. Donald Burgo v. Robert Henderson, Warden, No. 6:10-cv-1647, 2011 WL 1188703 and 2011 WL 2357218 (W.D. La. 2011); Burgo v. Warden C. Paul Phelps Correctional Center, 6:11-cv-1338 (W.D. La. 2011) and Burgo v. Warden C. Paul Phelps Correctional Center, 6:12-cv-705 (W.D. La. 2012).

Petitioner has also previously unsuccessfully attempted to remove his deceased adoptive father's succession action to this Court, in an attempt to annul the Judgment of Possession issued therein, disposing of the decedent's property in accordance with his Last Will and Testament, to his surviving spouse, Lois Sampey Burgo. Burgo v. James S. Burgo Succession, 6:14-cv-3078 (W.D. La. 2014).

The first habeas petition was denied and dismissed with prejudice on March 25, 2011 because the petition was barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). Petitioner's request for a certificate of appealability was denied on September 13, 2011 by the United States Court of Appeals for the Fifth Circuit. Donald Burgo v. Robert Henderson, Warden, No. 11-30355 (5th Cir. 2011).

The second habeas petition was deemed a second and successive petition filed without authorization from the Fifth Circuit in accordance with 28 U.S.C. § 2244(b)(3)(A), thereby rendering this court without jurisdiction to proceed. Accordingly, the petition was transferred to the Fifth Circuit. Petitioner's request for authorization to file a second or successive petition was denied on May 3, 2012 by the United States Court of Appeals for the Fifth Circuit. In re: Donald Burgo, No. 12-30110 (5th Cir. 2012).

The third habeas petition was likewise deemed a second and successive petition filed without authorization from the Fifth Circuit in accordance with 28 U.S.C. § 2244(b)(3)(A), thereby rendering this Court without jurisdiction to proceed. Accordingly, the petition was transferred to the Fifth Circuit. Petitioner's request for authorization to file a second or successive petition was dismissed by the United States Court of Appeals for the Fifth Circuit on December 2, 2014. In re: Donald Burgo, No. 14-31199 (5th Cir. 2014).

This Court's research reveals that on December 4, 2013, the United States Court of Appeals for the Fifth Circuit denied another request by petitioner for authorization to file a second or successive petition. In re: Donald Burgo, No. 13-31091 (5th Cir. 2013).

On October 13, 2014, petitioner attempted to remove his father's Louisiana State court succession action to this Court. The action was remanded for lack of jurisdiction on December 18, 2014. Petitioner's appeal was dismissed by the United States Court of Appeals for the Fifth Circuit on March 17, 2015. Burgo v. James S. Burgo Succession, No. 14-31417 (5th Cir. 2014).

This is Burgo's fourth attempt to collaterally attack, in this federal Court, his Louisiana State court convictions for cruelty to the infirm and the habitual offender sentence imposed by the Sixteenth Judicial District Court for St. Mary Parish, Louisiana, which were the subject of his three previous federal habeas petitions. The instant action is therefore unquestionably a § 2254 action which under 28 U.S.C. § 2244 is "second or successive".[5]

The petition attacks the same convictions and sentence that was the subject of Burgo's three previous petitions. The claims raised herein either were or could have been raised in the previous petitions. Moreover, ...


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