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Ferguson v. State

United States District Court, E.D. Louisiana

January 2, 2018

TERRY MATTHEW FERGUSON
v.
STATE OF LOUISIANA

         SECTION: “F” (1)

          REPORT AND RECOMMENDATION

          JANIS VAN MEERVELD UNITED STATES MAGISTRATE JUDGE.

         This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITHOUT PREJUDICE.

         Petitioner, Terry M. Ferguson, is a state prisoner incarcerated at the David Wade Correctional Center in Homer, Louisiana. He was charged with and pleaded guilty to numerous offenses in the Orleans Parish Criminal District Court. On direct appeal, the Louisiana Fourth Circuit Court of Appeal concisely summarized the various offenses and dispositions:

Ferguson was charged, in two separate bills of information, with a total of fifteen counts of theft of property valued at over $500, and one count of misapplication of funds by a contractor. The first case, … Orleans Parish CDC No. 478-091 …, consisted of three counts of theft of property valued at over $500. In pleading guilty, Ferguson admitted to stealing $55, 700 from Ernestine Magee, $43, 886 from Patricia Waters, and $19, 012 from Lawrence Carr. The companion case, … Orleans Parish CDC No. 477-265 …, consisted of twelve counts of theft of property valued at over $500, and one count of misapplication of funds by a contractor. From this set of victims Ferguson admitted to stealing, respectively: $31, 794 from Walter Martin and placed a $2, 470.01 lien on his house; $30, 000 from Katherine Abrams and placed a $3, 763.77 lien on her house; $35, 000 from Beverly Martin; $33, 000 from Maggie Raiford (a/k/a Maggie Rayford) and placed a $6, 668 lien on her house; $21, 225 from Mildred Bonner; $52, 000 from Gilbert and Denise Collins and placed a $5, 129.47 lien on their house; $30, 600 from Troy Holmes and Lintrell Phillips and placed a $2, 015.09 lien on the house; $17, 000 from Jacqueline Muse; $33, 788 from Marlin Johnson; $40, 000 from Kirk Robinson; $12, 750 from Arylus Scott Slush; $17, 000 from Pamela Burkes; and $63, 048 from Patricia Wexler.
….
Ferguson initially pled not guilty to the charges; however, after a preliminary hearing, where the district court found probable cause to sustain the charges, Ferguson elected to plead guilty as charged to all counts in each bill of information. In … Orleans Parish CDC No. 478-091 …, Ferguson was sentenced to 10 years at hard labor and assessed a $3, 000 fine on each count, to be served concurrently with each other and consecutively with the sentences in No. 477-265. As to the twelve counts of theft in … Orleans Parish CDC No. 477-265 …, he was sentenced to 10 years at hard labor and assessed a $3, 000 fine on each of the counts, to be served concurrently with each other. As to the misapplication of payments by a contractor count, he was also sentenced to 18 months at hard labor, to be served consecutively with the theft sentences and the sentences imposed in No. 478-091. In total, the court sentenced him to serve 21 ½ years of hard labor and $3, 000 in fines for each of the fifteen counts of theft over $500.[1]

         Petitioner appealed his sentences, and the Louisiana Fourth Circuit Court of Appeal affirmed the state district court's judgment.[2] On January 28, 2011, the Louisiana Supreme Court then denied his related writ applications.[3]

         After various post-conviction proceedings in the state courts, petitioner filed an application seeking habeas corpus relief pursuant to 28 U.S.C. § 2254 in this Court.[4] That federal application was dismissed as untimely filed.[5] He did not appeal.

         Petitioner thereafter filed the instant petition seeking habeas corpus relief in the United States District Court for the District of Columbia. That court then transferred the matter to the United States District Court for the Western District of Louisiana, [6] which, in turn, transferred the case to this Court.[7]

         However, because petitioner has already filed a prior § 2254 application that was dismissed with prejudice, this Court has no jurisdiction to consider his “second or successive” habeas petition until he first obtains authorization for its filing from the United States Fifth Circuit Court of Appeals. See Burton v. Stewart, 549 U.S. 147, 152 (2007).[8] As the United States Supreme Court explained:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a stringent set of procedures that a prisoner “in custody pursuant to the judgment of a State court, ” 28 U.S.C. § 2254(a), must follow if he wishes to file a “second or successive” habeas corpus application challenging that custody, § 2244(b)(1). In pertinent part, before filing the application in the district court, a prisoner “shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” § 2244(b)(3)(A). A three-judge panel of the court of appeals may authorize the filing of the second or successive application only if it presents a claim not previously raised that satisfies one of the two grounds articulated in § 2244(b)(2). § 2244(b)(3)(C); Gonzalez v. Crosby, 545 U.S. 524, 529-530, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); see also Felker v. Turpin, 518 U.S. 651, 656-657, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996).

Burton, 549 U.S. at 152-53.

         In that this Court lacks jurisdiction to consider petitioner's application, the question is how to proceed. Two options are available: transfer this matter to the United States Fifth Circuit Court of Appeals for ...


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