United States District Court, W.D. Louisiana, Shreveport Division
L. Hornsby, U.S. Magistrate Judge
the court is a petition for writ of habeas corpus
filed by pro se petitioner Glenn Young
(“Petitioner”), pursuant to 28 U.S.C. §2254.
This petition was received and filed in this court on
November 30, 2015. Petitioner also filed a Motion to Stay in
Abeyance Writ of Habeas Corpus Proceedings (Doc. 11). This
motion was filed and received in this court on May 23, 2017.
Petitioner is incarcerated at the Louisiana State
Penitentiary in Angola, Louisiana. He challenges his state
court convictions, habitual offender adjudication, and
sentences. He names Warden N. Burl Cain as respondent.
April 4, 2008, Petitioner was convicted of one count of
possession of a Schedule II, controlled dangerous substance,
and one count of illegal use of a weapon in Louisiana's
First Judicial District Court, Parish of Caddo. On April 29,
2008, he was adjudicated a third felony offender. On May 13,
2008, he was sentenced to 50 years imprisonment at hard labor
without benefit of parole, probation, or suspension of
sentence as to each count. The trial court ordered the
sentences to run concurrently.
for Habeas Corpus
support of this petition, Petitioner alleges (1) the evidence
was insufficient to support either conviction; (2) the
habitual offender adjudication was unconstitutional; (3) the
trial court erred in sentencing him after denial of his
motion for new trial and without waiver of the 24-hour delay;
(4) he was convicted and sentenced for a crime that had no
written accusation; (5) his sentences are excessive; (6) his
sentence is indeterminate; and (7) he received ineffective
assistance of counsel - a) failed to file a motion to
suppress; b) failed to object and request exclusion of
illegally obtained evidence; c) failed to object to the
mention of marijuana; d) failed to file motion to quash and
ineffective assistance of appellate counsel; e) trial court
failed to note the race and gender of potential jurors and
his counsel failed to object to the State's peremptory
strikes; f) failed to have bench conferences recorded; g)
failed to object to the testimony regarding the ERT entry and
request a mistrial; and h) failed to request a special jury
instruction regarding accomplice testimony.
has failed to demonstrate that he has exhausted claims 1, 2,
3, 5, and 6 in the Supreme Court of Louisiana and claims 7e,
f, g, and h in the Louisiana Second Circuit Court of Appeal
and the Supreme Court of Louisiana. It is well settled that a
petitioner seeking federal habeas corpus relief
cannot collaterally attack his state court conviction in
federal court until he has exhausted available state
remedies. Rose v. Lundy, 455 U.S. 509, 102 S.Ct.
1198, 71 L.Ed.2d 379 (1982); Minor v. Lucas, 697
F.2d 697 (5th Cir. 1983). This requirement is not a
jurisdictional bar but a procedural one erected in the
interest of comity providing state courts first opportunity
to pass upon and correct alleged constitutional violations.
Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509,
30 L.Ed.2d 438, 443 (1971); Shute v. Texas, 117 F.3d
233 (5th Cir. 1997).
under 28 U.S.C. §2254(b)(1)(A) the district court is
precluded from granting habeas relief on an
light of the above procedural history, the instant petition
constitutes a “mixed” petition, having both
exhausted and unexhausted claims. When a habeas
petition includes both exhausted claims and unexhausted
claims, the district court must dismiss the entire
"mixed petition." Murphy v. Johnson, 110
F.3d 10, 11, (5th Cir. 1997), quoting, Rose v.
Lundy, 455 U.S. at 522, 102 S.Ct. at 1205; Graham v.
Johnson, 94 F.3d 958, 968 (5th Cir. 1996).
all of Petitioner's claims have not been exhausted in the
state courts, this entire petition is subject to dismissal.
On the other hand, if Petitioner dismisses his unexhausted
claims and asserts only his exhausted claim(s), he may be
entitled to go forward. However, Petitioner is put on notice
that dismissing the unexhausted claims is not without
consequence. If he should dismiss the unexhausted claims at
this time, he may be precluded from bringing these claims in
the future. Specifically, the law with respect to successive
petitions requires a petitioner to obtain authorization from
the appropriate court of appeals before filing a second or
successive petition. 28 U.S.C.
§2244(b)(3)(A). Additionally, any future filings may be
barred by the one-year statute of limitations imposed by 28
Petitioner has three alternatives. He may choose to: (1)
maintain this petition with the unexhausted claims with full
knowledge that the entire petition is subject to dismissal;
or (2) indicate to the court that he wishes to dismiss the
unexhausted claims with full knowledge that he will risk the
opportunity to present these claims in a successive petition;
or (3) dismiss this entire petition so that he can exhaust
all of the claims before refiling with full knowledge that he
may be barred by the one-year time limitation provision on
federal habeas review.
to Stay in Abeyance
support of his motion to stay in abeyance, Petitioner claims
he has three additional unexhausted claims based on newly
discovered facts not known to him or his attorney. He claims
he filed an application for post-conviction relief in the
Louisiana First Judicial District Court on March 27, 2017.
Petitioner raises the following new claims in his application
for post-conviction relief: (1) the Clerk of Court coded the
race and gender of prospective jurors on the clerk's jury
worksheet and he was prejudiced because he did not know the
true identity of each seated prospective juror, (2) former
members of the Caddo Parish District Attorney's Office
employed a custom, usage, and/or policy to discriminate
against African American citizens because of their race and
their discrimination is long established, and (3) prospective
juror Alicia Kitterlin was not on the general jury pool
venire list and she was selected as a juror.
stay and abeyance requested by Petitioner “should be
available only in limited circumstances.” Rhines v.
Weber, 125 S.Ct. 1528 (2005). Courts should be cautious
about granting such stays because they undermine the
AEDPA's goal of streamlining federal habeas proceedings
by decreasing a petitioner's incentive to exhaust all his
claims in state court prior to filing his federal petition.
Id. A “stay and abeyance is appropriate when
the district court finds that there was good cause for the