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Hammond-Martin v. Marabella

United States District Court, W.D. Louisiana, Alexandria Division

February 15, 2018

FOREST C. HAMMOND-MARTIN, SR.
v.
ANTHONY J. MARABELLA, JR., JUDGE, et al.

          DRELL JUDGE.

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes United States Magistrate Judge.

         I. Background

         Forest C. Hammond-Martin, Sr. (“Hammond-Martin”), a resident of Alexandria, Louisiana, filed a complaint pursuant to 42 U.S.C. § 1983, alleging violations of his rights under 18 U.S.C. § 1584, 18 U.S.C. § 241, the 14th Amendment, the 13th Amendment, 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 1985, and the Louisiana Code of Criminal Procedure Articles 551-559. The named defendants are Anthony J. Marabella, Jr. (“Marabella”), Judge, Nineteenth Judicial District Court in East Baton Rouge Parish, and Hillar Moore III[1] (“Moore”), District Attorney of East Baton Rouge Parish.

         Hammond-Martin contends he was wrongfully incarcerated in 1978 pursuant to a conviction entered in the Louisiana Nineteenth Judicial District in East Baton Rouge Parish. Hammond-Martin shows he received a commuted sentence (to time served) in 1980 from then-Governor Edwards (Doc. 1-2). Hammond-Martin alleges that Judge Marabella wrongfully denied his motion to “correct, vacate, and set aside the illegal sentence.” Hammond contends that, although the record indicated that he pleaded guilty, the record showed he did not actually enter a guilty plea and was not “boykinized.”[2] Hammond-Martin further alleges that he has been denied employment because the East Baton Rouge Police Department reported to his prospective employer (during a background check) that he is a convicted felon. Hammond-Martin contends Judge Marabella told his secretary to tell Hammond-Martin that he needed to talk to D.A. Moore about his claims, but Moore refused to speak with him.

         Hammond-Martin seeks to have his 1973 conviction and sentence vacated and to have his criminal record expunged.

         II. Law and Analysis

         First, it is noted that a § 1983 complaint should be filed in the District Court where the complained-of events occurred. In this case, that would be the Middle District of Louisiana. However, since it is not clear whether this is a § 1983 complaint or a habeas petition, neither of which is properly before a federal court, the complaint is addressed in this Court.

         A petition to have a state conviction vacated and criminal record expunged should be brought pursuant to 28 U.S.C. § 2254. However, Hammond-Martin is no longer in custody, and was not when he filed this complaint. Therefore, he does not meet the “in custody” requirement for a habeas petition. See Fay v. Noia, 372 U.S. 391, 430 (1963); Carter v. Procunier, 755 F.2d 1126, 1129 (5th Cir. 1985).

         Instead, Hammond-Martin filed his complaint pursuant to § 1983, although he is not seeking compensation for civil rights violations.[3] Hammond-Martin's motions to vacate a state criminal conviction and to expunge his state record cannot be brought before a federal court in a § 1983 action.

         Accordingly, Hammond-Martin's complaint should be dismissed without prejudice.

         III. Conclusion

         Based on the foregoing, IT IS RECOMMNEDED that Hammond-Martin's complaint be DENIED AND DISMISSED WITHOUT PREJUDICE.

         Under the provisions of 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b), parties aggrieved by this Report and Recommendation have fourteen (14) calendar days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. No other briefs (such as supplemental objections, reply briefs, etc.) may be filed. Providing a courtesy copy of the ...


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