United States District Court, W.D. Louisiana, Shreveport Division
MARK L. HORNSBY, Magistrate Judge.
Before the court is a petition for writ of habeas corpus filed by pro se petitioner Nicholas Loyd Young, Sr. ("Petitioner"), pursuant to 28 U.S.C. § 2254. This petition was received and filed in this court on April 17, 2013. Petitioner is incarcerated in the River Correctional Center in Ferriday, Louisiana. He challenges his state court conviction and sentence. Petitioner names the Warden of River Correctional Center as respondent.
On August 23, 2010, Petitioner pleaded guilty in the Louisiana Twenty-Sixth Judicial District Court, Parish of Bossier, to second offense failure to register as a sex offender. On December 7, 2010, he was sentenced to 20 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
In support of this petition, Petitioner claims (1) he received ineffective assistance of counsel, (2) his confession was coerced, and (3) his guilty plea is illegal.
Petitioner has failed to properly exhaust claims (2) that his confession was coerced and (3) that his guilty plea is illegal. It is well settled that a petitioner seeking federal habeas corpus relief cannot collaterally attack his state court conviction in federal court until he has exhausted available state remedies. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Minor v. Lucas, 697 F.2d 697 (5th Cir. 1983). This requirement is not a jurisdictional bar but a procedural one erected in the interest of comity providing state courts first opportunity to pass upon and correct alleged constitutional violations. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438, 443 (1971); Shute v. Texas, 117 F.3d 233 (5th Cir. 1997). Additionally, under 28 U.S.C. §2254(b)(1)(A) the district court is precluded from granting habeas relief on an unexhausted claim.
In light of the above procedural history, the instant petition constitutes a "mixed" petition, having both exhausted and unexhausted claims. When a habeas petition includes both exhausted claims and unexhausted claims, the district court must dismiss the entire "mixed petition." Murphy v. Johnson, 110 F.3d 10, 11, (5th Cir. 1997), quoting, Rose v. Lundy, 455 U.S. at 522, 102 S.Ct. at 1205; Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996).
Because all of Petitioner's claims have not been exhausted in the state courts, this entire petition is subject to dismissal. On the other hand, if Petitioner dismisses his unexhausted claims and asserts only his exhausted claim, he may be entitled to go forward. However, Petitioner is put on notice that dismissing the unexhausted claims is not without consequence. If he should dismiss the unexhausted claims at this time, he may be precluded from bringing the claims in the future. Specifically, the law with respect to successive petitions requires a petitioner to obtain authorization from the appropriate court of appeals before filing a second or successive petition. 28 U.S.C. §2244(b)3)(A). Additionally, any future filings may be barred by the one-year statute of limitations imposed by 28 U.S.C. §2244(d)(1).
Thus, Petitioner has three alternatives. He may choose to: (1) maintain this petition with the unexhausted claims with full knowledge that the entire petition is subject to dismissal; or (2) indicate to the court that he wishes to dismiss the unexhausted claims with full knowledge that he will risk the opportunity to present these claims in a successive petition; or (3) dismiss this entire petition so that he can exhaust all of the claims before refiling with full knowledge that he may be barred by the one-year time limitation provision on federal habeas review.
IT IS ORDERED that Petitioner, within thirty (30) days from the date of this order, expressly state whether he seeks review of the unexhausted claims in this court at this time, whether he wishes to dismiss same, or whether he wishes to dismiss this entire petition to refile at a later date after he exhausts state court remedies on all claims asserted herein.
Failure to comply with this court order will result in dismissal of this suit pursuant to rules 41(b) and 16(f) of the ...