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 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.
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
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.
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).
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 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 ...