Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jones v. McCain

United States District Court, M.D. Louisiana

February 27, 2019

KENDRICK JONES #608512
v.
WARDEN SANDY MCCAIN, ET AL.

          NOTICE

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

         In 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.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         This 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.[1] However, there is no need for oral argument or for an evidentiary hearing.

         On or 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.

         Procedural History

         On June 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.

         On or 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.

         On or 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.

         At some 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.

         Applicable Law and Analysis

         One of 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.