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 amended
application for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. See R. Docs. 1 and 3. The
State has filed an opposition to the petitioner's
application that does not address the issues presented
herein. See R. Doc. 10. However, there is no need
for oral argument or for an evidentiary hearing.
about June 26, 2017, the pro se petitioner, filed
this counseled habeas corpus proceeding pursuant to 28
U.S.C. § 2254, attacking his 2015 sentence, entered
in the Nineteenth Judicial District Court for the Parish of
East Baton Rouge, State of Louisiana, on one count of
aggravated burglary. The petitioner alleges that his sentence
is illegal because the petitioner pled guilty to the state
charge believing that his state sentence would run
concurrently with a previously imposed federal sentence.
13, 2014, the petitioner was sentenced in this Court to serve
48 months to run consecutive with any pending charges after
pleading guilty to one count of Possession of a Firearm by a
Convicted Felon. On April 13, 2015, the petitioner pled
guilty in state court to one count of Aggravated Burglary and
was sentenced to serve 10 years at hard labor, to run
concurrent with any other time being served and with credit
for time served since October 18, 2013.
about August 14, 2016, the petitioner filed a Motion to
Correct Illegal Sentence in the state trial court. On
November 30, 2016, the petitioner's Motion was granted
and the petitioner's sentence was clarified as being 10
years at hard labor, to run concurrent and coterminous with
any federal time being served with credit for time served
from October 18, 2013.
about March 5, 2017 the petitioner filed an Application for
Writ of Habeas Corpus in the state trial court. Approximately
two days later the petitioner filed a Motion for Transfer and
Resolution of Detainer.
point, the petitioner filed a Motion to Withdraw Guilty Plea
which was heard by the trial court on June 12, 2017. The
petitioner alleges that he declined to withdraw his plea and
informed the trial court that he intended to seek review in a
higher court. The petitioner filed the present application
herein on or about June 26, 2017.
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 habeas ...