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
application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. See R. Doc. 5. The State has
filed an opposition to the petitioner's application, and
the petitioner has filed a reply. See R. Docs. 13
and 15. There is no need for oral argument or for an
about May 5, 2017, the pro se petitioner, filed this
habeas corpus proceeding pursuant to 28 U.S.C. § 2254,
attacking his 2012 criminal conviction and 2013 sentence,
entered in the Nineteenth Judicial District Court for the
Parish of East Baton Rouge, State of Louisiana, on one count
of simple rape. The petitioner attacks his conviction on the
grounds of a violation of his 14th amendment
rights to a fair and impartial trial, ineffective assistance
of counsel, imposition of an excessive sentence in violation
of the 8th amendment, and a Brady
August 17, 2012, the petitioner was found guilty of one count
of simple rape. The petitioner was sentenced, on June 17,
2013, to 25 years imprisonment at hard labor, without benefit
of parole, probation, or suspension of sentence on each
count. The petitioner thereafter filed an appeal, and his
conviction and sentence were affirmed. See State v.
Douglas, 14-0019 (La.App. 1 Cir. 7/9/14), writ
denied 14-1358 (La. 2/13/15).
about February 12, 2016, the petitioner filed a counseled
application for post-conviction relief (“PCR”),
and thereafter filed a pro se PCR on February 18,
2016. While his application was pending before the trial
court, the petitioner filed the instant petition herein on or
about May 5, 2017. On May 25, 2017, the trial court denied
the petitioner's PCR application. The petitioner's
subsequent writs seeking review of the trial court's
denial of his PCR application were denied on November 16,
2017 and February 11, 2019, respectively. See State v.
Douglas, 17-1039 (La.App. 1 Cir. 11/16/17), writ
denied 17-2068 (La. 2/11/19).
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
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). Additionally, under 28 U.S.C. §
2254(b)(1) the district court is precluded from granting
habeas relief on an unexhausted claim.
light of the above procedural history, the instant petition
was unexhausted at the time it was filed. The petitioner
presented his claims regarding judicial bias, ineffective
assistance of counsel, and excessive sentence in his
application for post-conviction relief. Prior to the
trial court denying his application, and prior to seeking
review of the trial court's denial of his PCR application
in the appellate courts, the petitioner filed the instant
petition. Additionally, the petitioner has not presented his
claim regarding a Brady violation to the state
courts at any level. Because ...