United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
matter was referred to a United States Magistrate Judge to
conduct hearings, including an evidentiary hearing, if
necessary, and to submit proposed findings 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.
October 16, 2017, petitioner Quincy Joseph Gaudet filed a
federal habeas corpus petition in this court. He asserts the
following grounds for relief: (1) The State failed to prove
his guilt beyond a reasonable doubt. (2) The state trial
court erroneously denied his motion to exclude evidence that
had not been provided to him in discovery. (3) The state
trial court erred in finding that he was a third offender.
(4) His sentence was excessive. Record Doc. No. 1.
December 22, 2017, the State filed its response in opposition
to the petition in which it conceded that the four claims
asserted in the petition had all been addressed by the
Louisiana Supreme Court on direct appeal and that the claims
had therefore been properly exhausted in the state courts.
Record Doc. No. 7. Thus, the State's response addressed
the merits of Gaudet's claims.
December 26, 2017, Gaudet filed a motion to dismiss his
petition voluntarily without prejudice. Record Doc. No. 8. In
his motion, Gaudet states that he “inadvertently
filed” his federal habeas corpus petition after his
direct appeal was concluded. Id. at p. 2. He states
that he is currently commencing proceedings in the state
courts in which he seeks post-conviction relief on the
additional grounds of ineffective assistance of his trial
counsel and a due process violation, neither of which have
been exhausted in the state courts. Id. at p. 3. He
asserts that “dismissal of the [instant habeas]
petition without prejudice would not unreasonably impair his
right to obtain federal habeas relief as his state court
filing will be timely and properly filed and there are no
concerns about the AEDPA clock not being tolled pending the
outcome of his state habeas action.” Id.
Gaudet states that dismissal of his current habeas petition
without prejudice will permit him to efficiently
“present all claims in a single, unified federal habeas
corpus petition after exhaustion.” Id.
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,
comprehensively revised federal habeas corpus legislation,
including 28 U.S.C. § 2254. The AEDPA went into effect
on April 24, 1996 and applies to habeas petitions filed
after that date. Flanagan v. Johnson, 154 F.3d 196,
198 (5th Cir. 1998) (citing Lindh v. Murphy, 521
U.S. 320 (1997)). The AEDPA therefore applies to Gaudet's
petition, which was filed on October 16, 2017. The threshold
questions in habeas review under the amended statute are
whether the petition is timely and whether petitioner's
claims have been adjudicated on the merits in state court;
i.e., the petitioner must have exhausted state court
remedies and must not be in “procedural default”
on a claim. Nobles v. Johnson, 127 F.3d 409, 419-20
(5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).
fundamental prerequisite to federal habeas relief under
§ 2254 is the exhaustion of all claims in state court
prior to requesting federal collateral relief.”
Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir.
1998) (citing Rose v. Lundy, 455 U.S. 509, 519-20
(1982)); accord Preiser v. Rodriguez, 411 U.S. 475,
500 (1973); Nobles, 127 F.3d at 419. “A
federal habeas petition should be dismissed if state remedies
have not been exhausted as to all of the federal
court claims.” Whitehead, 157 F.3d at 387
(citing 28 U.S.C. § 2254(b)(1)(A); Rose, 455
U.S. at 519-20) (emphasis added).
exhaustion requirement is satisfied when the substance of the
federal habeas claim has been fairly presented to the
highest state court.” Id. (citing
Picard v. Connor, 404 U.S. 270, 275-78 (1971))
(emphasis added). “State prisoners must give the state
courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's
established appellate review process, ” including
discretionary review when that review is part of the
state's ordinary appellate review procedures.
O'Sullivan v. Boerckel, 526 U.S. 838,
845 (1999); accord Duncan v. Walker, 533 U.S. 167,
addition, “an action may be dismissed at the
plaintiff's request . . . by court order, on terms that
the court considers proper. . . . Unless the order states
otherwise, a dismissal under this paragraph (2) is without
prejudice.” Fed.R.Civ.P. 41(a)(2), made applicable to
this matter by Rule 12 of the Federal Rules Governing Section
case, petitioner himself has requested dismissal
without prejudice, recognizing that the claims he
seeks to litigate have not yet been exhausted in the
state courts. His request is a prudent recognition that
proceeding with his current petition without the unexhausted
claims would result in a later federal habeas petition
asserting those claims after exhaustion being subject to
dismissal as “successive.” 28 U.S.C. §
2244(b). Dismissal without prejudice to permit the
later filing of a single, unified federal habeas petition
would also advance the interests of judicial economy.
foregoing reasons, IT IS RECOMMENDED that
petitioner Quincy Joseph Gaudet's motion to dismiss his
petition without prejudice, Record Doc. No. 8 should be
GRANTED and that his petition for a writ of
habeas corpus under 28 U.S.C. § 2254 be
DISMISSED WITHOUT PREJUDICE for failure to
exhaust state court remedies.
party's failure to file written objections to the
proposed findings, conclusions, and recommendation in a
magistrate judge's report and recommendation within
fourteen (14) days after being served with a copy shall bar
that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district
court, provided that the party has been served with notice
that such consequences will result from a failure to ...