United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations therein. Failure to
file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being
served will bar you, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
matter comes before the Court on the petitioner's
application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The State has filed an opposition to the
petitioner's application, and the petitioner has filed a
response thereto. Pursuant to a subsequent Order of the Court
dated June 2, 2015 (R. Doc. 12), the petitioner has filed a
supplemental memorandum and documentation in support of his
application (R. Doc. 15), and a prison administrator and the
State have provided supplemental documentation pertinent
thereto. (R. Docs. 16 and 17).
petitioner, Terry Callahan, challenges his conviction,
entered in 2003 in the Nineteenth Judicial District for the
Parish of East Baton Rouge, State of Louisiana, on one count
of second degree murder. He contends that he was provided
with ineffective assistance of counsel when his trial counsel
failed to adequately advise him regarding a plea offered by
the State during jury deliberations.
facts, as provided in the decision of the Louisiana First
Circuit Court of Appeal and found by the trial jury, are as
follows: On August 6, 2002, a vehicle that the petitioner was
riding in was struck by gunfire, which caused the glass in
the vehicle shatter and cut the petitioner. Thereafter, the
petitioner went to a family member's home, entered and
then exited a short while later and got in the driver's
seat of the vehicle. After leaving the family member's
home, the petitioner drove around East Baton Rouge Parish
looking for the victim, Kevin Brand. The petitioner
unsuccessfully pursued the victim, lost him, and continued to
drive around until re relocated the victim at his home on
Fourteenth Street, where he shot the victim multiple times.
Kevin Brand later died from his wounds. State v.
Callahan, 04-1371 (La.App. 1 Cir. 3/24/05), 898 So.2d
petitioner was indicted by a grand jury on the charge of
second degree murder and, after a trial by jury, was found
guilty as charged. Upon the denial of post-trial motions, he
was sentenced to life imprisonment at hard labor, without the
benefit of probation, parole or suspension of sentence.
counsel, the petitioner filed a timely appeal before the
Louisiana Court of Appeal for the First Circuit, asserting as
error (1) that the evidence was insufficient to support the
conviction, and (2) that his trial counsel was ineffective
for failing to object to hearsay testimony. On March 24,
2005, the intermediate state appellate court affirmed the
conviction and sentence. Id. The petitioner sought
further review in the Louisiana Supreme Court, which denied
review on January 13, 2006. See State v. Callahan,
05-1449 (La. 1/13/06), 920 So.2d 234.
to the petitioner, he thereafter forwarded, on or about
December 29, 2006, an application for post-conviction relief
to the Clerk of Court for the Nineteenth Judicial District
Court. According to the records of that court, however, the
application was never received. The petitioner asserts that he
inquired with the Clerk of Court via letter, every 90 to 120
days, regarding the status of his application for
post-conviction relief. After receiving no response, he then
re-submitted his application to the trial court, on or about
January 10, 2008.
an evidentiary hearing in the state trial court, the
petitioner's application was denied on January 25, 2013.
The petitioner thereafter sought further review before the
Louisiana appellate courts and, on July 15, 2013, and March
21, 2014, respectively, the state courts denied further