United States District Court, W.D. Louisiana, Lake Charles Division
BRANDY MIZE D.O.C. # 703060
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE
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.
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.
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,  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).
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. 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.
Federal Habeas Petition
instant petition was filed in this court on November 17,
2017. 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.
on Habeas Review
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). ...