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Carr v. Caddo Correctional Center

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

March 2, 2018

LLOYD CARR
v.
CADDO CORRECTIONAL CENTER

          JUDGE FOOTE

          REPORT AND RECOMMENDATION

          MARK L. HORNSBY U.S. MAGISTRATE JUDGE

         In accordance with the standing order of this court, this matter was referred to the undersigned Magistrate Judge for review, report and recommendation.

         STATEMENT OF CLAIM

         Before 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.

         On July 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.

         In 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 conviction.

         For the reasons stated below, Petitioner's application for habeas relief should be dismissed for failure to exhaust state court remedies.

         LAW AND ANALYSIS

         Habeas 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).

         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. 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).

         Petitioner 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.

         Accordingly;

         IT IS RECOMMENDED that Petitioner's application for writ of habeas corpus be D ...


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