United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations 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 of the Magistrate Judge which
have been 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
matter comes before the Court on the petitioner's
application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. There is no need for oral argument or for an
about January 9, 2017, the pro se petitioner, an
inmate confined at the Louisiana State Penitentiary, Angola,
Louisiana, filed this habeas corpus proceeding pursuant to 28
U.S.C. § 2241, attacking his 2009 criminal conviction
and sentence entered in the Nineteenth Judicial District
Court for the Parish of East Baton Rouge, State of Louisiana.
The petitioner asserts that: (1) the evidence was
insufficient to support his conviction; (2) the trial court
erred in denying his Motion for Post-Verdict Judgment of
Acquittal; and (3) he was denied his right to testify.
September 17, 2009, the petitioner was sentenced by the
Nineteenth Judicial District Court for the Parish of East
Baton Rouge, State of Louisiana. The petitioner was
subsequently granted an out of time appeal. The counseled
appeal raised four assignments of error: (1) the trial court
erred in denying the petitioner's Motion for Post-Verdict
Judgment of Acquittal; (2) the evidence was not sufficient to
support the conviction; (3) the trial court erred in denying
a request for a special jury instruction; and (4) the
non-unanimous verdict violated the United States and
Louisiana Constitutions. The petitioner's conviction and
sentence were affirmed by the appellate court on May 6, 2011,
and writs were denied by the Louisiana Supreme Court on March
9, 2012. See State v. Davis, 10-1887 (La.App. 1 Cir.
5/6/11), 2011 WL 2616866 and State ex. rel. Davis v.
State, 11-1202 (La. 3/9/12/), 84 So.3d 544.
February 18, 2013, the petitioner filed an Application for
Post Conviction Relief and presented four claims for relief:
(1) the petitioner received ineffective assistance of counsel
due to (a) counsel's failure to communicate a plea offer,
(b) failure to call witnesses, and (c) denial of his right to
testify at trial: (2) violations of his constitutional rights
during questioning by law enforcement; (3) defective
indictment; and (4) cumulative error. The state filed
procedural objections, which were granted except as to claim
(1)(c). The trial judge ordered the matter remanded back to
the commissioner to determine whether the petitioner was
denied his right to testify at trial. The state sought
review, which was denied by the intermediate appellate court,
and the state subsequently sought review with the Louisiana
Supreme Court. On September 23, 2016, the Louisiana Supreme
Court granted the state's writ application and stated:
“Writ granted. The district
court's ruling is reversed to the limited extent it
ordered an evidentiary hearing on relator's claim that he
was denied his right to testify. Relator is ordered to
supplement his application with the required support to
substantiate his allegation. Only after he has made such a
threshold showing should the district court proceed with an
evidentiary hearing. See State v. Hampton,
00-0522, pp. 14-15, (La. 3/22/02), 818 So.2d 720,
729-30.” See State v. Davis, 15-1934 (La.
9/23/16), 199 So.3d 1139.
August 21, 2018, the petitioner requested that the instant
matter be stayed until he could exhaust his claim, regarding
denial of his right to testify, in the state courts.
See R. Doc. 18. The petitioner's Motion was
denied. See R. Doc. 19.
Law and Analysis
the threshold requirements for a § 2254 petition is
that, subject to certain exceptions, the petitioner must have
first exhausted in state court all of his claims before
presenting them to the district court. 28 U.S.C. §
2254(b)(1) (“An application for a writ of habeas corpus
on behalf of a person in custody pursuant to the judgment of
a State court shall not be granted unless it appears that ...
the applicant has exhausted the remedies available in the
courts of the State....”) The Supreme Court has
interpreted § 2254(b)(1) to require dismissal of a