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. See R. Docs16-18. There is no need for
oral argument or for an evidentiary hearing.
about May 26, 2015, the pro se petitioner, an inmate
now confined at the Louisiana State Penitentiary, Angola,
Louisiana, filed this habeas corpus proceeding pursuant to
28 U.S.C. § 2254, attacking his criminal
conviction and sentence, entered in 1985 in the 19th Judicial
District Court for the Parish of East Baton Rouge, State of
Louisiana, on one count of second degree murder and one count
of armed robbery.
of 1985, the petitioner was found guilty of one count of
second degree murder and one count of armed robbery. On
September 19, 1985 was sentenced to life imprisonment without
benefit of probation, parole or suspension of sentence on the
count of second degree murder. On the count of armed robbery,
the petitioner was sentenced to ninety-nine years of
imprisonment without of probation, parole or suspension of
sentence to run concurrently with the sentence for second
degree murder. The petitioner thereafter filed an appeal, and
on May 28, 1986 his conviction and sentence were affirmed by
the Louisiana First Circuit Court of Appeal. See State v.
Thompson, 489 So.2d 1364 (La.App. 1 Cir. 1986). The
petitioner sought further review in the state supreme court
which was denied on October 3, 1986. See State v.
Thompson, 494 So.2d 324 (La. 1986).
petitioner then an application for post-conviction relief in
1990. Following the denial of his first PCR application, the
petitioner filed an application for a writ of habeas corpus,
then additional PCR applications in 2001, 2002, 2006, and
in November of 2012, the petitioner filed his sixth PCR
application wherein he asserted a Brady violation
due to the state's alleged suppression of autopsy reports
authored by Drs. Frey and Guillory. The trial court dismissed
the application as untimely. The petitioner sought further
review in the state appellate courts which was denied on
April 21, 2014 and February 27, 2015, respectively. See
State v. Thompson, 14-1066 (La. 2/27/15), 160 So.3d 984.
On or about May 26, 2015, the petitioner filed the present
application. The state filed an opposition on August 20,
2015, asserting therein that this Court lacks jurisdiction to
consider the plaintiff's motion because it is successive
or alternatively, untimely.
Law and Analysis
to 28 U.S.C. § 2244(b)(3)(A), “[b]efore a second
or successive application permitted by this section is filed
in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.”
Id. If the instant petition is successive, this
Court cannot consider it because, without an order from the
Fifth Circuit, this Court lacks subject ...