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. Doc. 38. The State
has filed an opposition to the petitioner's application.
See R. Docs. 26 and 42. There is no need for oral
argument or for an evidentiary hearing.
about September 13, 2017, the now pro se petitioner,
filed this counseled habeas corpus proceeding pursuant to
28 U.S.C. § 2254, attacking his 1988 criminal
conviction and sentence, entered in the Nineteenth Judicial
District Court for the Parish of East Baton Rouge, State of
Louisiana, on one count of second degree murder. The
petitioner attacks his conviction on the grounds of newly
discovered evidence, ineffective assistance of counsel, and a
August 26, 1988, the petitioner was found guilty of one count
of second degree murder. The petitioner was sentenced to life
imprisonment at hard labor without benefit of parole,
probation, or suspension of sentence on each count, with the
sentences to run consecutively. The petitioner thereafter
filed a counseled appeal, and his conviction and sentence
were affirmed on appeal. See State v. Dietrich,
89-1125 (La.App. 1 Cir. 6/26/90), writ denied
90-1739 (La. 11/9/90).
about April 19, 1999, the petitioner filed his first
application for post-conviction relief (“PCR”),
which was denied by the trial court as time-barred. The
petitioner's writ applications seeking review were
denied. See State ex. rel. Dietrich v. Louisiana,
00-0484 (La.App. 1 Cir. 5/5/00), writ denied 01-1049
(La. 1/4/02). On or about July 7, 2013 the petitioner filed a
second application for post-conviction relief, and
supplemented the same on or about May 26, 2015. The
petitioner's PCR application was denied by the trial
court, and his writ was denied by the appellate court on
April 18, 2017. See State v. Dietrich, 17-0246
(La.App. 1 Cir. 4/18/17).
about May 7, 2017, the petitioner sought further review in
the Louisiana Supreme Court. While his writ was still
pending, the petitioner filed the present application herein
on September 13, 2017. On May 18, 2018, the petitioner's
writ was denied. See State v. Dietrich, 17-0801 (La.
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
corpus petition if it contained even a single unexhausted
claim - the “total exhaustion” requirement.
Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
well settled that a petitioner seeking federal habeas corpus
relief cannot collaterally attack his state court conviction
in federal court until he has exhausted available state
remedies. Rose v. Lundy,455 U.S. 509 (1982);
Minor v. Lucas,697 F.2d 697 (5th Cir.
1983). This requirement is not a jurisdictional bar
but a procedural one erected in the interest of comity
providing state courts first opportunity to pass upon and
correct alleged constitutional violations. Picard v.
Connor,404 U.S. 270 (1971). ...