United States District Court, W.D. Louisiana, Shreveport Division
L. HORNSBY U.S. MAGISTRATE JUDGE.
the court is a petition for writ of habeas corpus
filed by pro se petitioner Quincy Young
(“Petitioner”), pursuant to 28 U.S.C. §2254.
This petition was received and filed in this court on May 14,
2019. Petitioner is incarcerated at the Winn Correctional
Center in Winnfield, Louisiana. He challenges his state court
conviction and sentence. He names Warden Deville as
August 5, 2013, Petitioner pleaded guilty to one count of
armed robbery in the Louisiana First Judicial District Court,
Parish of Caddo. He was sentenced to 35 years imprisonment at
hard labor without benefit of parole, probation, or
suspension of sentence.
support of this petition, Petitioner alleges (1) his counsel
was ineffective because he failed to file a motion to appoint
a sanity commission; (2) his sentence is excessive; and (3)
the trial court denied his request to obtain new counsel.
has failed to demonstrate that he properly exhausted
claim (2) regarding an excessive sentence in
the Louisiana Second Circuit Court of Appeals and the Supreme
Court of Louisiana. 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, 102 S.Ct. 1198, 71
L.Ed.2d 379 (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, 275, 92 S.Ct. 509, 30 L.Ed.2d 438,
443 (1971); Shute v. Texas, 117 F.3d 233 (5th Cir.
1997). Additionally, under 28 U.S.C.
§2254(b)(1)(A) the district court is precluded from
granting habeas relief on an unexhausted claim.
the above procedural history, the instant petition
constitutes a “mixed” petition, having both
exhausted and unexhausted claims. When a habeas
petition includes both exhausted claims and unexhausted
claims, the district court must dismiss the entire
"mixed petition." Murphy v. Johnson, 110
F.3d 10, 11, (5th Cir. 1997), quoting, Rose v.
Lundy, 455 U.S. at 522, 102 S.Ct. at 1205; Graham v.
Johnson, 94 F.3d 958, 968 (5th Cir. 1996).
all of Petitioner's claims have not been exhausted in the
state courts, this entire petition is subject to dismissal.
On the other hand, if Petitioner dismisses his unexhausted
claim and asserts only his exhausted claim(s), he may be
entitled to go forward. However, Petitioner is put on notice
that dismissing the unexhausted claims is not without
consequence. If he should dismiss the unexhausted claim at
this time, he may be precluded from bringing this claim in
the future. Specifically, the law with respect to successive
petitions requires a petitioner to obtain authorization from
the appropriate court of appeals before filing a second or
successive petition. 28 U.S.C.
§2244(b)(3)(A). Additionally, any future filings may be
barred by the one-year statute of limitations imposed by 28
Petitioner has three alternatives. He may choose to: (1)
maintain this petition with the unexhausted claim with full
knowledge that the entire petition is subject to dismissal;
or (2) indicate to the court that he wishes to dismiss the
unexhausted claim with full knowledge that he will risk the
opportunity to present this claim in a successive petition;
or (3) dismiss this entire petition so that he can exhaust
all of the claims before refiling with full knowledge that he
may be barred by the one-year time limitation provision on
federal habeas review.
IS ORDERED that Petitioner, within thirty (30) days
from the date of this order, expressly state whether he seeks
review of the unexhausted claim in this court at this time,
whether he wishes to dismiss same, or whether he wishes to
dismiss this entire petition to re-file at a later date after
he exhausts state court remedies on all claims asserted
to comply with this court order will result in dismissal of
this suit pursuant to rules 41(b) and 16(f) of the
Federal Rules of Civil Procedure.