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 Laderick Johnson
(“Petitioner”), pursuant to 28 U.S.C. §2254.
This petition was received and filed in this court on July
20, 2017. Petitioner is incarcerated at the Richwood
Correctional Center in Monroe, Louisiana. He challenges his
state court conviction and sentence. He names Warden Jeff
Landry as respondent.
October 21, 2014, Petitioner was convicted of armed robbery
in the Louisiana First Judicial District Court, Parish of
Caddo. On December 1, 2014, he was sentenced to 15 years
imprisonment at hard labor without benefit of parole,
probation, or suspension of sentence.
support of this petition, Petitioner alleges (1) he received
ineffective assistance of counsel because of a juror
conflict, (2) the trial court denied his motion to suppress
the indent procedure, and (3) the trial court closed his case
before ruling on his motion for new trial.
fails to demonstrate that he has exhausted state court
remedies with respect to the claims presented herein. In
order to satisfy the exhaustion requirement, the claims must
be presented to the state's highest court, even when
review by that court is discretionary. Magouirk v.
Phillips, 144 F.3d 348 (5th Cir. 1998) citing
Richardson v. Procunier, 762 F.2d 429, 431-32 (5th
Cir. 1985); O'Sullivan v. Boerckel, 526 U.S.
838, 119 S.Ct. 1728, 1732-33 (1999). In Louisiana, the
highest court is the Supreme Court of Louisiana. Petitioner
fails to demonstrate that he presented the claims that he
presents herein to the Supreme Court of Louisiana. Therefore,
Petitioner should be required to submit documentary proof
that he has exhausted state court remedies on the claims
presented herein. 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). Additionally, under 28 U.S.C.
§2254(b)(1)(A) the district court is precluded from
granting habeas relief on an unexhausted claim.
Title 28 U.S.C. §2244(d)(1)(A) was amended by AEDPA to
provide a one-year statute of limitations for the filing of
applications for writ of habeas corpus by persons in
custody pursuant to the judgment of a state court. This
limitation period generally runs from the date that the
conviction becomes final. 28 U.S.C. §2244(d)(1)(A).
the information provided in the petition, it appears this
petition is untimely because it was filed more than one year
after Petitioner's conviction and sentence became final.
Nevertheless, review of this petition may still be proper if
the claims asserted herein fall within one of three statutory
exceptions found in 28 U.S.C. §2244(d)(1)(B), (C), or
(D). The time for filing federal habeas relief on
claims which fall within these exceptions can, in appropriate
cases, be extended beyond the one year period after
conviction becomes final. These exceptions apply (1) if the
state imposes an unconstitutional impediment to the filing of
a federal habeas petition, (2) if the Supreme Court
recognizes a new constitutional right and makes the right
retroactive to cases on collateral review, or (3) if the
petitioner is unable through the exercise of due diligence to
discover the factual predicate of the petitioner's
federal habeas claim. See 28 U.S.C.
§2244(d)(1)(B)(C) and (D); Flanagan v. Johnson,
154 F.3d 196 (5th Cir. 1998).
IT IS ORDERED that Petitioner submit within thirty (30) days
after service of this order, a copy of the legal memorandum
he filed at each level of the state courts and the response
he received from each state court in order to demonstrate
that he has presented the issues he raises herein to the
Supreme Court of Louisiana.
FURTHER ORDERED that Petitioner submit to the Clerk of Court
within (30) days after service of this order, a response
hereto setting forth allegations which demonstrate that his
petition is timely under the provisions of 28 U.S.C.
§2244(d)(1). This response shall set forth the date on
which each application for direct review and each application
for post-conviction relief was filed at each level of the
state courts and the dates on which each level of the state
courts responded to his applications).
to comply with this order or failure to keep the court
apprised of an address change will result in dismissal of
this petition pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure and Rule 41.3W of the Uniform Local Rules for
the District Courts of Louisiana.
DONE AND SIGNED.