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George v. Kent

United States District Court, E.D. Louisiana

December 4, 2017

LENNIS A. GEORGE
v.
JASON KENT

         SECTION “B” (1)

          ORDER AND REASONS

         Before the Court is the pro se petition of Lennis A. George (“Petitioner”) for issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Rec. Doc. 3 at 1. The Magistrate Judge issued a Report and Recommendation (“Report”), advising dismissal of Petitioner's writ of habeas relief with prejudice. Rec. Doc. 30 at 1. On September 8, 2017, Petitioner timely filed objections, requesting the Court reject the Magistrate Judge's Report and Recommendation. Rec. Doc. 33 at 1.

         For the reasons enumerated below, IT IS ORDERED that the Magistrate Judge's Report and Recommendation is ADOPTED; Petitioner's objections are OVERRULED; and the instant habeas corpus petition is DISMISSED WITH PREJUDICE.

         FACTS AND PROCEDURAL HISTORY

         This request for habeas relief arises out of Petitioner's incarceration at the Dixon Correctional Institute (“Dixon”) in Jackson, Louisiana. His conviction and sentence are based on the following: Lennis A. George saw the victim driving her vehicle on the highway and requested her to pull her vehicle over for them to speak. Rec. Doc. 30 at 8. The victim refused and Petitioner then began to ram her vehicle off the road. Id. The victim pulled her vehicle over and got out. Id. Petitioner approached her, stabbing her repeatedly with a small knife. Id. After bystanders attempted to stop Petitioner from attacking the victim, Petitioner fled the scene. Id.

         On July 21, 2010, a state district court jury convicted Petitioner of attempted manslaughter under Louisiana law. Rec. Doc. 3 at 1 (referring to La. Rev. Stat. Title 14 §§ 27 and 31). On August 27, 2010, the court sentenced Petitioner as a fourth offender to serve a term of thirty-five years of imprisonment. Rec. Doc. 3 at 1. The Louisiana Fourth Circuit Court of Appeal affirmed Petitioner's conviction and then, on February 17, 2012, the Louisiana Supreme Court denied his related writ of review. Rec. Doc. 3 at 2. On July 3, 2013, Petitioner filed a supplemental memorandum to the state district court in support of his post-conviction application, in which the state district court denied. State Rec., Vol. 7 of 7; Rec. Doc. 3 at 6. The Louisiana Fourth Circuit Court of Appeal denied Petitioner's related writ applications for review of the state district court's denial of his post-conviction relief (State v. George, No. 2015-K-0213 (La.App. 4th Cir. Mar. 16, 2015); State Rec., Vol. 7 of 7); and the Louisiana Supreme Court did likewise on January 25, 2016. State Rec., Vol. 7 of 7.

         On March 4, 2016, Petitioner filed the instant federal habeas corpus petition under 28 U.S.C. § 2254. Rec. Doc. 3. The state filed a response, arguing that the court should deny Petitioner's habeas application because Petitioner failed to submit his state district court application for post-conviction relief before the May 17, 2013, deadline for filing such claim. Rec. Doc. 15 at 7. Petitioner responded by amending his habeas application to include documentation that he mailed his habeas application to the state district court, supporting his contention he timely filed his habeas application to the state district court. Rec. Doc. 16. In turn, the state filed two responses, one addressing Petitioner's alleged supporting documents (Rec. Doc. 20) and another discussing the merits of Petitioner's underlying habeas claims (Rec. Doc. 27).

         LAW AND ANALYSIS

         The Magistrate Judge found that Petitioner timely filed his post-conviction application to the state district court, despite the court not receiving it, because Petitioner timely mailed his application. Rec. Doc. 30 at 4. The Magistrate Judge then noted that Petitioner diligently pursued his application by seeking post-conviction relief at both the state and federal level. Id. at 7. The record and law support finding the one-year period of limitation for filing a federal application for habeas corpus had tolled and Petitioner's application was filed timely. Id.

         When analyzing Petitioner's substantive claims, the Magistrate Judge separated Petitioner's claims based on whether the state courts heard the claims on direct or collateral review. Rec. Doc. 30 at 9. Direct review claims are Petitioner's claims denied on their merits by the state court on direct appeal; those claims are as follows:

1. Intention to Kill (Rec. Doc. 3-2 at 15.)
2. “Other Crimes” Evidence (Id. at 16.)
3. Mistrial (Id. at 18.)
4. 24-Hour Delay (Id. at 18.) ...

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