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.

Dietrich v. Vannoy

United States District Court, M.D. Louisiana

March 12, 2019

BRIAN DIETRICH #125055
v.
DARREL VANNOY

          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. 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.

         On or 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 Brady violation.

         Procedural History

         On 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).

         On or 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).

         On or 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. 5/11/18).

         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 corpus petition if it contained even a single unexhausted claim - the “total exhaustion” requirement. Rose v. Lundy, 455 U.S. 509, 518-19 (1982).

         It is 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). ...


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.