United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
L. HORNSBY U.S. MAGISTRATE JUDGE
accordance with the standing order of this court, this matter
was referred to the undersigned Magistrate Judge for review,
report and recommendation.
the court is a petition for writ of habeas corpus
filed by pro se petitioner Lloyd Carr
(“Petitioner”), pursuant to 28 U.S.C. §2254.
This petition was received and filed in this court on October
16, 2017. Petitioner is incarcerated at the Caldwell
Correctional Center in Grayson, Louisiana. He challenges his
state court conviction. He names the Caddo Correctional
Center as respondent.
11, 2017, Petitioner was convicted of one count of possession
of a Schedule II, CDS, in the Louisiana First Judicial
District Court, Parish of Caddo. On October 25, 2017, he was
adjudicated a fourth felony offender. On October 30, 2017, he
was sentenced to 20 years imprisonment at hard labor without
benefit of parole, probation, or suspension of sentence.
support of this petition, Petitioner alleges (1) he was
denied a pretrial hearing, (2) the traffic stop was not based
on probable cause, (3) he received ineffective assistance of
counsel, and (4) the evidence was insufficient to support his
reasons stated below, Petitioner's application for
habeas relief should be dismissed for failure to
exhaust state court remedies.
corpus relief is available to a person who is in custody
"in violation of the Constitution or laws or treaties of
the United States." 28 U.S.C. § 2254. However, the
right to pursue habeas relief in federal court is
not unqualified. 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 all available state remedies. See Rose v.
Lundy, 455 U.S. 509, 102 S.Ct. 1198 (1982); Minor v.
Lucas, 697 F.2d 697 (5th Cir. 1983).
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. See Picard v. Connor, 404
U.S. 270, 275, 92 S.Ct. 509, (1971); Rose, 455 U.S.
at 509, 102 S.Ct. at 1198. Moreover, in the event that the
record or the habeas corpus petition, on its face,
reveals that the petitioner has not complied with the
exhaustion requirement, a United States district court is
expressly authorized to dismiss the claim. See Resendez
v. McKaskle, 722 F.2d 227, 231 (5th Cir. 1984).
has not exhausted his available state court remedies as to
the claims presented in this petition. At the time of filing
his petition, he had not filed for direct review of his
conviction and sentence. Petitioner filed an application for
post-conviction relief in the trial court on November 6,
2017, which was denied as premature. Thus, Petitioner did not
exhaust his state court remedies prior to filing his petition
in this court.
IS RECOMMENDED that Petitioner's application for
writ of habeas corpus be D ...