United States District Court, W.D. Louisiana, Shreveport Division
L. Hornsby U.S. Magistrate Judge.
the court is a petition for writ of habeas corpus
filed by pro se petitioner Orlandthefer James Cary,
pursuant to 28 U.S.C. §2241. This petition was received
and filed in this court on June 11, 2018. Petitioner names
the State of Louisiana and Officer J. Anderson as
was convicted of one count of speeding and one count of
driving under suspension. The court ordered Petitioner to pay
a fine for each conviction.
support of this petition, Petitioner alleges (1) the court
lacked personal and subject matter jurisdiction, (2) the
Eleventh Amendment removed the right of the state to bring
suit against the people, and (3) standing must be proven to
must demonstrate that he has exhausted state court remedies
with respect to the claims he raises in this petition. In
order to satisfy the exhaustion requirement, the claim must
be presented to the state's highest court, even when
review by that court is discretionary. Magouirk v.
Phillips, 144 F.3d 348 (5th Cir. 1998);
O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct.
1728, 1732-33 (1999). In Louisiana, the highest court is the
Supreme Court of Louisiana. Petitioner fails to demonstrate
that he presented his claims he attempts to present herein to
the Supreme Court of Louisiana. Therefore, Petitioner should
be required to submit documentary proof that he has exhausted
state court remedies on the claims he attempts to present
well settled that a petitioner seeking federal habeas
corpus relief cannot collaterally attack his state court
conviction in federal court until he has exhausted available
state remedies. Rose v. Lundy, 455 U.S. 509, 102
S.Ct. 1198, 71 L.Ed.2d 379 (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.
Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509,
30 L.Ed.2d 438, 443 (1971); Shute v. Texas, 117 F.3d
233 (5th Cir. 1997). Additionally, under 28 U.S.C.
§2254(b)(1)(A) the district court is precluded from
granting habeas relief on an unexhausted claim.
addition, Title 28 U.S.C. §2244(d)(1)(A) was amended by
AEDPA to provide a one-year statute of limitations for the
filing of applications for writ of habeas corpus by
persons in custody pursuant to the judgment of a state court.
This limitation period generally runs from the date that the
conviction becomes final. 28 U.S.C. §2244(d)(1)(A).
the information provided in the petition, the court is unable
to determine if it is timely.
IT IS ORDERED that Petitioner submit within
thirty (30) days from the date of this order, a copy of the
legal memorandum he filed at each level of the state courts
and the date that it was filed and the responses he received
from each state court in order to demonstrate that he has
presented the issues he attempted to raise herein to the
Supreme Court of Louisiana.
IS FURTHER ORDERED that Petitioner submit to the
Clerk of Court within (30) days after service of this order,
a response hereto setting forth allegations which demonstrate
that his petition is timely under the provisions of 28 U.S.C.
§2244(d)(1). This response shall include the date he was
convicted and sentenced. This response shall include whether
he filed a direct appeal of his conviction and sentence, and
if so, the dates on which it was filed and the dates on which
the state courts responded. This response shall also include
the dates on which each motion and post-conviction relief
application was filed in each of the state courts and the
dates on which the state courts responded to each.
to comply with this order or failure to keep the court
apprised of an address change will result in dismissal of
this petition pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure and Rule 41.3W of the Uniform Local Rules for
the District Courts of Louisiana.