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Kinchen v. Cain

United States District Court, M.D. Louisiana

June 21, 2018

ANTHONY KINCHEN (#561357)
v.
BURL CAIN, WARDEN

          NOTICE

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE.

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         Before the Court is the application of Petitioner Anthony Kinchen for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, Petitioner's application should be denied. There is no need for oral argument or for an evidentiary hearing.

         I. Procedural History

         On July 2, 2010, Petitioner was charged by Bill of Information in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana, with two counts of armed robbery, including a charged enhancement because the offender allegedly utilized a firearm while committing the offenses. See La. R.S. 14:64 and 14:64.3. After a trial by jury conducted in April 2011, the jury found Petitioner guilty of the charged offenses. The trial judge subsequently sentenced Petitioner on July 22, 2011, to fifteen (15) years in confinement on each count, with additional five (5) year penalties added for each offense because of the use of a firearm, with these sentences to run consecutively and without the benefit of probation, parole or suspension of sentence.

         Petitioner pursued a direct appeal, arguing that the sentences imposed in connection with the referenced convictions were excessive and that his attorney's failure to file a motion to reconsider the sentences constituted ineffective assistance of counsel. On June 8, 2012 the Louisiana Court of Appeal for the First Circuit affirmed Petitioner's convictions and sentences. State v. Kinchen, 2011 KA 2023, 2012 WL 2061502 (La.App. 1 Cir. June 8, 2012). Petitioner sought further review before the Louisiana Supreme Court and, on September 21, 2012, that Court denied review, without comment. See State v. Kinchen, 98 So.3d 329 (La. 2012). Upon the failure of Petitioner to thereafter file an application for a writ of certiorari in the United States Supreme Court, his conviction and sentence became final on December 20, 2012 after expiration of the ninety-day period allowed for him to do so. See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003) (recognizing that a conviction becomes final for federal purposes after the 90-day period allowed for a petitioner to proceed in the United States Supreme Court if he has not pursued such relief).

         On or about July 15, 2013, [1] Petitioner filed a pro se application for post-conviction relief (“PCR”) in the state trial court. Petitioner asserted therein (1) that he was provided with ineffective assistance of trial counsel in several respects, (2) that he was provided with ineffective assistance of counsel on appeal because his appellate attorney failed to raise as an issue on appeal the trial court's “blatant abuse of discretion” in commenting upon Petitioner's right to testify, and (3) that his Sixth Amendment right to testify was violated by the trial court. In response to Petitioner's application, the State filed procedural objections and an Answer addressing Petitioner's claims. On October 18, 2013, the State Court Commissioner issued a Report recommending that Petitioner's claims be denied. On December 10, 2013, the trial court adopted the Commissioner's Recommendation and dismissed Petitioner's PCR application.

         On or about January 21, 2014, Petitioner filed an application for supervisory review in the Louisiana First Circuit Court of Appeal, which court denied review on April 21, 2014.

         On or about May 23, 2014, Petitioner sought further review before the Louisiana Supreme Court, which Court similarly denied review on March 13, 2015. See State ex rel. Kinchen v. State, 161 So.3d 631 (La. 2014).

         Finally, Petitioner submitted his federal habeas corpus application for filing herein on or about June 9, 2015. Petitioner ...


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