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Malbrough v. Vannoy

United States District Court, E.D. Louisiana

January 3, 2019

CLIFF MALBROUGH
v.
DARREL VANNOY, WARDEN

         SECTION: "F"(5)

          REPORT AND RECOMMENDATION

          MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE

         Pro se petitioner, Cliff Malbrough, filed the above-captioned 28 U.S.C. § 2254 habeas petition with a motion to stay the action to allow him to complete exhaustion of his available state-court remedies. The matter is before the Court on Malbrough's Motion for Stay and Abeyance (Rec. Doc. 6). The federal petition and this motion were referred to the undersigned United States Magistrate Judge for issuance of findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), and as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts.

         In his motion to stay, Malbrough acknowledges that his federal petition contains claims that have not yet been adjudicated by the Louisiana Supreme Court.[1] He asserts that he filed the federal petition and motion to stay the proceedings "in order to preserve all of his claims." He urges the Court to hold the federal petition in abeyance pending resolution of his post-conviction claims before the state courts.

         As instructed, the State filed a response to the motion for stay.[2] The State opposes the requested stay because none of Malbrough's claims have been exhausted. The State also argues that his pending state-court post-conviction proceedings effectively tolled the federal limitations period. Malbrough filed a traverse to the State's response.[3]In his federal petition, he raises 14 grounds for relief:

(1) The sentences imposed were constitutionally excessive;
(2) trial counsel was ineffective for failing to obtain experts and present testimony of defense witnesses;
(3) trial counsel was ineffective for failing to present evidence of an alibi on the charge of sexual battery;
(4) trial counsel was ineffective for failing to accept the court's offer of a mistrial following jury contamination;
(5) trial counsel was ineffective for failing to object to the State's presentation of video evidence defense counsel had not previously seen;
(6) appellate counsel was ineffective for failing to present all appealable issues;
(7) appellate counsel was ineffective for suggesting that Malbrough's efforts to seek review by the Louisiana Supreme Court would not be successful;
(8) the trial court improperly denied his motion for a mistrial after the jury received inadmissible ...

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