United States District Court, M.D. Louisiana
WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE.
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the U.S. District Court.
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.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
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.
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
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
about July 15, 2013,  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.
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.
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).
Petitioner submitted his federal habeas corpus application
for filing herein on or about June 9, 2015. Petitioner