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Callahan v. Cain

United States District Court, M.D. Louisiana

February 14, 2017

TERRY CALLAHAN #453106
v.
BURL CAIN, WARDEN

          NOTICE

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

         In 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.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         This 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).

         The 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.

         Factual Background

         The 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 635 (Table).

         Procedural Background

         The 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.

         Through 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.

         According 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.[1] 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.[2]

         After 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 ...


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