United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE.
matter was referred to the undersigned United States
Magistrate Judge to conduct a hearing, including an
evidentiary hearing, if necessary, and to submit proposed
findings and recommendations for disposition pursuant to 28
U.S.C. § 636(b)(1)(B) and (C), and as applicable, Rule
8(b) of the Rules Governing Section 2254 Cases in the United
States District Courts. Upon preliminary review under Rule 4
of the Rules Governing Section 2254 Cases, the Court has
determined that petitioner is not entitled to relief because
he has failed to exhaust available state-court remedies.
See Resendez v. McKaskle, 722 F.2d 227, 230 (5th
Cir. 1984). For this reason, IT IS
RECOMMENDED that the petition for habeas corpus
relief be DISMISSED WITHOUT PREJUDICE.
and Procedural History
Otis Merritt, is a convicted inmate currently incarcerated at
the Rayburn Correctional Center in Angie, Louisiana. On
September 11, 2018, he pleaded guilty to one count of failing
to register as a sex offender. He was sentenced to two years
about February 28, 2019, Merritt filed his federal
application for habeas corpus relief. He claims that he is
being confined beyond his anticipated release date of October
18, 2018. Specifically, he alleges:
My release date of October 18, 2018 has been denied allegedly
by Louisiana Department of Corrections and especially the
Record office at Rayburn Correctional Center, and numerous
addresses or halfway placements have been denied, and this is
conditions that violated an “abuse of discretion”
and denying my release saying I must continue to be
incarcerated to March 20, 2020 13 months later, than my
release date, as prescribed by law, under the plea agreement
of September 11, 2018.
claims that he had already served nearly 14 months and was
entitled to immediate release following his plea agreement.
He further alleges that his continued incarceration
constitutes cruel and unusual punishment and a denial of
equal protection. He also alleges that officials have refused
to bring him to court so that he may “answer or
plead” to outstanding warrants in St. Tammany Parish.
He requests this Court issue an order immediately releasing
him from confinement and vacating the outstanding warrants.
of whether a petitioner is seeking habeas corpus relief under
28 U.S.C. §2241 or 28 U.S.C. §2254, he must first
exhaust his remedies in the state courts before seeking
habeas corpus relief from the federal courts. See 28
U.S.C. § 2254(b)(1) (requiring exhaustion of state
remedies in habeas corpus actions brought pursuant to §
2254); see also Edge v. Stalder, 83 Fed.Appx. 648
(5th Cir. 2003) (exhaustion of state remedies is likewise
required in habeas corpus actions brought pursuant to 28
U.S.C. § 2241); Dickerson v. Louisiana, 816
F.2d 220, 225 (5th Cir. 1987) (same). A petitioner properly
exhausts state remedies only by fairly presenting his federal
constitutional claims to each level of the state courts
empowered to hear those claims, either on direct appeal or in
collateral post-conviction proceedings. See
O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct.
1728, 144 L.Ed.2d 1 (1999) (requiring state prisoners, in
order to fully exhaust their claims, "to file petitions
for discretionary review when that review is part of the
ordinary appellate review procedure in the State");
Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347,
158 L.Ed.2d 64 (2004). In Louisiana, the highest state court
is the Louisiana Supreme Court. See La. Const. art.
V, § 5(A).
has not sought relief in the state courts either on direct
appeal or post-conviction review with respect to his
state-court conviction or sentence. His responses set forth
in the federal application clearly reflect that he has made
no such attempt. With respect to his sentence-calculation
claims, he has not shown that he exhausted administrative
review of his claims under Louisiana's Corrections
Administrative Remedy Procedure, La. Rev. Stat. §
15:1171 et seq., or, if necessary, subsequent
supervisory review of that procedure by the state courts
pursuant to La. Rev. Stat. § 15:571.15. Johnson v.
Cain, Civ. Action No. 15-310, 2015 WL 10438640 (E.D. La.
June 4, 2015), adopted, 2016 WL 892610 (E.D. La.
Mar. 9, 2016); Ross v. Louisiana, Civ. Action No.
18-117-P, 2018 WL 2110687 (W.D. La. Apr. 17, 2018),
adopted, 2018 WL 2107195 (W.D. La. May 7, 2018).
Furthermore, this Court's independent research confirms
that Merritt has not presented his claims to the Louisiana
Supreme Court, as required to exhaust available state
remedies and proceed with the claims in federal
court. For these reasons, Merritt has
failed to exhaust his state-court remedies with respect to
the claims presented, and his petition should be dismissed
foregoing reasons, it is RECOMMENDED that
Merritt's application for federal habeas corpus relief be
DISMISSED WITHOUT PREJUDICE. Merritt is
hereby instructed that this report and recommendation serves
as notice to him that the Court has sua sponte
raised and considered the exhaustion issue, and that he has
an opportunity to submit any evidence or argument concerning
exhaustion as part of any objections he may file to this
report. See Kurtzemann v. Quarterman, 306 Fed.Appx.
205, 206 (5th Cir. 2009) (citing Day v.
McDonough, 547 U.S. 198, 209-10, 126 S.Ct. 1675, 164
L.Ed.2d 376 (2006); Magouirk v. Phillips, 144 F.3d
348, 357-59 (5th Cir.1998)).
partys failure to file written objections to the proposed
findings, conclusions, and recommendation in a magistrate
judges 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 to ...