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Mize v. Boutte

United States District Court, W.D. Louisiana, Lake Charles Division

June 7, 2018

BRANDY MIZE D.O.C. # 703060
v.
FREDERICK BOUTTE

         SECTION P

          REPORT AND RECOMMENDATION

          KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE

         Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Brandy Mize, who is proceeding pro se in this matter. Mize is an inmate in the custody of the Louisiana Department of Public Safety and Corrections and is currently incarcerated at the Louisiana Correctional Institute for Women in St. Gabriel, Louisiana. Frederick Boutte, warden of that facility and respondent in this matter, opposes the petition.

         This petition is referred to the undersigned for review, report, and recommendation in accordance with 28 U.S.C. § 636 and the standing orders of the court. For the following reasons IT IS RECOMMEDED that the petition for writ of habeas corpus be DENIED and DISMISSED WITH PREJUDICE.

         I.

         Background

         A. Conviction

         Mize was charged by bill of information in the Thirtieth Judicial District Court, Vernon Parish, Louisiana, with one count of being a principal to forcible rape, [1] a violation of Louisiana Revised Statute §§ 14:24 and 14:42.1; one count of being an accessory after the fact to forcible rape, a violation of Louisiana Revised Statute §§ 14:25 and 14:42.1; and four counts of being a principal to an aggravated crime against nature, a violation of Louisiana Revised Statute §§ 14:24 and 14:89.1(A)(2). Doc. 14, att. 2, pp. 9-10. The charges all related to Mize's involvement in the sexual abuse of her daughter, at the time a child under the age of 18, along with accomplice Travis McKee, in February 2015. Id. Pursuant to a plea agreement, Mize was convicted of the first two counts and the remaining charges were dismissed at the state's motion. Doc. 14, att. 4, pp. 18-29. On November 10, 2015, she was sentenced to a forty year term of imprisonment on Count 1 and a five year term on Count 2, with the terms to run consecutively. Id. at 40-42. The court did not specify whether any portion of the sentence was to be served without benefit of probation, parole, or suspension of sentence. Id. Meanwhile, Travis McKee pleaded guilty to one count of forcible rape and one count of molestation of a juvenile, and received consecutive sentences of forty years and twenty years. State v. McKee, 2016 WL 6495075 (La. Ct. App. 3d Cir. Nov. 2, 2016).

         B. Direct Appeal

         Mize raised two assignments of error in the Louisiana Third Circuit Court of Appeal: (1) the sentence for Count 1 was excessive and (2) the court erred by imposing consecutive sentences, because her crimes constituted part of a common scheme or plan. Doc. 14, att. 5, pp. 1-19. The court found no merit to either claim, noting that the state district court had acted within its discretion and that multiple circumstances existed to justify the maximum and consecutive sentences.[2] State v. Mize, 2016 WL 5405268, at *2-*5 (La. Ct. App. 3d Cir. Sep. 28, 2016). Mize then sought review in the Louisiana Supreme Court, which denied writs on September 6, 2017. State v. Mize, 224 So.3d 983 (La. 2017). She did not file a petition for writ of certiorari in the United States Supreme Court, nor did she seek collateral review through a state application for post-conviction relief. Doc. 1, p. 2.

         C. Federal Habeas Petition

         The instant petition was filed in this court on November 17, 2017.[3] Doc. 1. Here Mize complains that her sentence is unconstitutionally excessive, based on the combined terms imposed and the order that the sentences run consecutively. Doc. 1, att. 2.

         II.

         Standards on Habeas Review

         A. Timeliness

         Federal law imposes a one-year limitation period within which persons who are in custody pursuant to the judgment of a state court may seek habeas review in federal court. 28 U.S.C. § 2244(d)(1). This period generally runs from the date that the conviction becomes final. Id. The time during which a properly-filed application for post-conviction relief is pending in state court is not counted toward the one-year limit. Id. at § 2244(d)(2); Ott v. Johnson, 192 F.3d 510, 512 (5th Cir. 1999). ...


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