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Huey v. Kent

United States District Court, M.D. Louisiana

March 19, 2019

ALBERT HUEY #128815
v.
JASON KENT, 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 is before the Court on the petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner, Albert Huey, challenges his conviction and sentence, entered in 2012 in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana, on one count of armed robbery. The petitioner contends that missing portions of the transcript violated his right to due process because he lacked the opportunity for meaningful appellate review.

         Factual Background

         The facts, as accurately summarized in the decision of the Louisiana First Circuit Court of Appeal (State v. Huey, 13-1227 (La.App. 1 Cir. 2/18/14), 142 So.3d 27), are as follows: On the evening of November 20, 2010, Jennifer Moore went to Macknell Christopher's trailer on 68th Avenue in Scotlandville (Baton Rouge). Moore, who knew Christopher, asked if he could loan her some money. Christopher gave her $5.00. Moore said she was going to the store, then left the trailer. About fifteen minutes later, Moore returned to the trailer with the petitioner, whom Christopher did not know. Moore asked Christopher for more money. Christopher surmised that when Moore left with the $5.00, she would soon return asking for more money. Thus, he hid his money in his sock and told Moore he had no more money when she returned asking for more. Apparently not believing Christopher, Moore began searching his pockets for money. As Christopher began struggling to keep Moore's hands off of him, the petitioner approached and told Christopher that if he had something to give it to Moore. The petitioner then lifted his shirt to reveal a knife handle protruding from his waistband. Christopher gave Moore $155.00 from his sock. Moore and the petitioner began arguing over the money, and the petitioner took the money from her. The petitioner and Moore left the trailer. Moore had also taken Christopher's cell phone. Thereafter, Christopher drove to the fourth district police station to file a complaint. During the course of their investigation, the police interviewed Moore, who directed them to the petitioner's house. Both the petitioner and Moore lived only a few blocks from Christopher.

         Procedural History

         After a trial by jury conducted in November of 2011, the petitioner was found guilty of armed robbery. The petitioner was sentenced on March 2, 2012, to 30 years imprisonment without the benefit of probation, parole or suspension of sentence. The petitioner thereafter filed an out of time appeal.

         On February 18, 2014, the petitioner's conviction and sentence were affirmed by the Louisiana Court of Appeal for the First Circuit. See State v. Huey, 13-1227 (La.App. 1 Cir. 2/18/14), 142 So.3d 27. The petitioner's application for supervisory review in the Louisiana Supreme Court was denied on October 3, 2014. See State v. Huey, 14-535 (La. 10/3/14), 149 So.3d 795. On March 2, 2015, the petitioner's petition for writ of certiorari was denied by the Supreme Court of the United States. See Huey v. Louisiana, 135 S.Ct. 1507 (2015).

         On or about April 2, 2015, the petitioner filed an application for post-conviction relief in the state district court, which was dismissed by the trial court on February 26, 2016. The plaintiff sought further review in the appellate courts which was denied on November 13, 2017. See State ex rel. Huey v. State, 16-0803 (La. 11/13/17), 229 So.3d 918. On or about November 28, 2017, the petitioner filed the instant application for habeas corpus relief in this Court.

         Standard of Review

          The standard of review in this Court is that set forth in 28 U.S.C. § 2254(d). Pursuant to that statute, an application for a writ of habeas corpus shall not be granted with respect to any claim that a state court has adjudicated on the merits unless the adjudication has “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Relief is authorized if a state court has arrived at a conclusion contrary to that reached by the Supreme Court on a question of law or if the state court has decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 413 (2000). Relief is also available if the state court has identified the correct legal principle but has unreasonably applied that principle to the facts of the petitioner's case or has reached a decision based on an unreasonable factual determination. See Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000). Mere error by the state court or mere disagreement on the part of this Court with the state court determination is not enough; the standard is one of objective reasonableness. Id. See also Williams v. Taylor, supra, 529 U.S. at 409 (“[A] federal habeas court ...


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