United States District Court, E.D. Louisiana
REGINALD H. JONES
KEITH DEVILLE, WARDEN
REPORT AND RECOMMENDATION
M. DOUGLAS UNITED STATES MAGISTRATE JUDGE.
Reginald H. Jones, a Louisiana state prisoner, filed this
federal application seeking habeas corpus relief pursuant to
28 U.S.C. § 2254. For the following reasons, it is
recommended that the application be dismissed without
April 2, 2018, petitioner was convicted of aggravated assault
with a firearm, possession of a firearm by a convicted felon,
and obstruction of justice. On August 2, 2018, he was found
to be a multiple offender and sentenced as such on each
conviction to a concurrent term of twenty years
imprisonment. On February 27, 2019, the Louisiana Fourth
Circuit Court of Appeal affirmed his convictions and
interim, petitioner, through counsel, filed the instant
federal application seeking habeas corpus relief in August of
2018. The state has filed a response in
opposition arguing that the petition should be dismissed
because petitioner's convictions are not yet final and
his claims are unexhausted.
noted, the Louisiana Fourth Circuit Court of Appeal affirmed
petitioner's convictions and sentences on February 27,
2019. Therefore, his time for seeking further direct review
by the Louisiana Supreme Court has not yet expired.
See La. S.Ct. Rule X, § 5(a) (“An
application seeking to review a judgment of the court of
appeal … after an appeal to that court … shall
be made within thirty days of the mailing of the notice of
the original judgment of the court of appeal; however, if a
timely application for rehearing has been filed in the court
of appeal in those instances where a rehearing is allowed,
the application shall be made within thirty days of the
mailing of the notice of denial of rehearing or the judgment
on rehearing.”). As a result, his state criminal
judgment is not yet final for federal habeas purposes.
See 28 U.S.C. § 2244(d)(1)(A) (for federal
habeas purposes, a state criminal judgment becomes
“final by the conclusion of direct review or the
expiration of the time for seeking such review”).
as also correctly noted in the state's response,
petitioner clearly is not entitled to relief because his
remedies in the state courts are not yet exhausted.
“Before seeking a federal writ of habeas corpus, a
state prisoner must exhaust available state remedies, 28
U.S.C. § 2254(b)(1), thereby giving the State the
opportunity to pass upon and correct alleged violations of
its prisoners' federal rights.” Baldwin v.
Reese, 541 U.S. 27, 29 (2004) (quotation marks omitted).
Moreover, “total exhaustion” is required, meaning
that the exhaustion requirement is not met unless each and
every claim in the federal application is exhausted. Rose
v. Lundy, 455 U.S. 509 (1982). The United States Supreme
Court has explained:
The exhaustion doctrine is principally designed to protect
the state courts' role in the enforcement of federal law
and prevent disruption of state judicial proceedings. Under
our federal system, the federal and state courts are equally
bound to guard and protect rights secured by the
Constitution. Because it would be unseemly in our dual system
of government for a federal district court to upset a state
court conviction without an opportunity to the state courts
to correct a constitutional violation, federal courts apply
the doctrine of comity, which teaches that one court should
defer action on causes properly within its jurisdiction until
the courts of another sovereignty with concurrent powers, and
already cognizant of the litigation, have had an opportunity
to pass upon the matter.
Id. at 518 (citations, footnote, quotation marks,
and brackets omitted).
exhaust, a petitioner must have fairly presented the
substance of his claim to the state courts.” Wilder
v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001) (internal
quotation marks omitted). Generally, the exhaustion
requirement is satisfied only when the grounds urged in a
federal petition were previously presented to the state's
highest court in a procedurally proper manner
according to state court rules. Dupuy v. Butler, 837
F.2d 699, 702 (5th Cir. 1988).
Louisiana, the highest state court is the Louisiana Supreme
Court. See La. Const. art. V, § 5(A). Because
petitioner has not yet provided the Louisiana Supreme Court
with a fair opportunity to consider the claims included in
his instant federal application, he has failed to comply with
the federal exhaustion requirement. Accordingly, his federal
application should be dismissed on that basis. See,
e.g., Thompkins v. Ford, Civ. Action No.
18-1870, 2018 WL 3545164 (E.D. La. June 28, 2018),
adopted, 2018 WL 3533551 (E.D. La. July 23, 2018);
Billizone v. Louisiana, Civ. Action No. 16-12659,
2016 WL 7984351 (E.D. La. Dec. 19, 2016), adopted,
2017 WL 367639 (E.D. La. Jan. 25, 2017); Schwertz v.
Angola State Prison, Civ. Action No. 09-7234, 2010 WL
836566 (E.D. La. Mar. 8, 2010).
therefore RECOMMENDED the federal
application for habeas corpus relief filed by Reginald H.
Jones be DISMISSED WITHOUT PREJUDICE.
party's failure to file written objections to the
proposed findings, conclusions, and recommendation in a
magistrate judge's report and recommendation within
fourteen (14) days after being served with a copy shall bar
that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district
court, provided that the party has been served with notice
that such consequences will result from a failure ...