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Dickerson v. Vannoy

United States District Court, W.D. Louisiana, Lake Charles Division

August 6, 2019

JON DICKERSON D.O.C. # 428915
v.
DARRELL VANNOY

          JAMES D. CAIN, JR. MAGISTRATE Judge

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before the court is a petition for writ of habeas corpus [doc. 1] filed by pro se petitioner Jon Dickerson (“petitioner”). The petitioner is an inmate in the custody of the Louisiana Department of Safety and Corrections. The respondent opposes the petition [doc. 13]. The petition is now ripe for review.

         This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636. For reasons stated below, IT IS RECOMMENDED that all claims be DENIED and DISMISSED WITH PREJUDICE.

         I.

         Background

         A. Conviction

         Following a jury trial in the Fourteenth Judicial District Court, Calcasieu Parish, Louisiana, Dickerson was convicted on June 24, 2013, of one count of second degree murder. State v. Dickerson, 140 So.3d 904, 907 (La. Ct. App. 3d Cir. 2014). On June 27, 2013, he was sentenced to a term of life imprisonment without benefit of probation, parole, or suspension of sentence. Id. The charge related to the murder of Darrell Schaub, a friend of the petitioner.

         B. Direct Appeal

         Petitioner sought review in the Louisiana Third Circuit Court of Appeal, raising the following assignments of error: (1) the evidence was insufficient to support the conviction and (2) the trial court erred in denying his request to ascertain the identity of confidential informants. State v. Dickerson, 140 So.3d 904, 905-07 (La. Ct. App. 3d Cir. 2014). The Third Circuit reviewed both claims on the merits and denied relief. Id. at 908-11. Dickerson then sought review in the Louisiana Supreme Court, which denied same on March 13, 2015. State v. Dickerson, 161 So.3d 638 (La. 2015). He indicates that he did not file a petition for certiorari in the United States Supreme Court. Doc. 1, p. 4.

         C. State Collateral Review

         Petitioner filed a pro se application for post-conviction relief in the trial court on April 6, 2016. Doc. 1, att. 3, pp. 64-89; Doc. 6, att. 1. In that application he asserted ineffective assistance of counsel as his sole basis for relief. The application was denied without a hearing on June 30, 2016, by order filed on July 8, 2016. Id. at 109-10. Dickerson next sought review in the Third Circuit, which denied same on April 4, 2017. Doc. 13, att. 9, p. 196. He sought review in the Louisiana Supreme Court, which denied same on September 28, 2018. State ex rel. Dickerson v. State, 253 So.3d 135 (La. 2018).

         D. Federal Habeas Petition

         The instant petition was filed in this court on November 28, 2018, and raises claims of insufficient evidence and ineffective assistance of counsel. Doc. 1.

         II.

         Law & Analysis

         A. Timeliness

         Federal law imposes a one-year limitation period within which persons who are in custody pursuant to the judgment of a state court may seek habeas review in federal court. 28 U.S.C. § 2244(d)(1). This period generally runs from the date that the conviction becomes final. Id. The time during which a properly-filed application for post-conviction relief is pending in state court is not counted toward the one-year limit. Id. at § 2244(d)(2); Ott v. Johnson, 192 F.3d 510, 512 (5th Cir. 1999). However, any lapse of time before proper filing in state court is counted. Flanagan v. Johnson, 154 F.3d 196, 199 n. 1 (5th Cir. 1998).

         A state application is considered pending both while it is in state court for review and also during intervals between a state court's disposition and the petitioner's timely filing for review at the next level of state consideration. Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001). The limitations period is not tolled, however, for the period between the completion of state review and the filing of the federal habeas application. Rhines v. Weber, 125 S.Ct. 1528 (2005). Accordingly, in order to determine whether a habeas petition is time-barred under the provisions of §2244(d) the court must ascertain: (1) the date upon which the judgment became final either by the conclusion of direct review or by the expiration of time for seeking further direct review, (2) the dates during which properly filed petitions for post-conviction or other collateral review were pending in the state courts, and (3) the date upon which the petitioner filed his federal habeas corpus petition.

         B. Exhaustion and Procedural Default

         Exhaustion and procedural default are both affirmative defenses that may be considered waived if not asserted in the respondent's responsive pleadings. E.g., Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir. 1994). However, the federal district court may also consider both doctrines on its own motion. Magouirk v. Phillips, 144 F.3d 348, 357-59 (5th Cir. 1998). Therefore we consider any assertions by respondent under these doctrines, in addition to conducting our own review.

         1. Exhaustion of State Court Remedies

         The federal habeas corpus statute and decades of federal jurisprudence require that a petitioner seeking federal habeas corpus relief exhaust all available state court remedies before filing his federal petition. 28 U.S.C. § 2254(b)(1); e.g., Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998). This is a matter of comity. Ex parte Royall, 6 S.Ct. 734, 740-41 (1886). In order to satisfy the exhaustion requirement, the petitioner must have “fairly presented” the substance of his federal constitutional claims to the state courts “in a procedurally proper manner according to the rules of the state courts.” Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001); Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). Each claim must be presented to the state's highest court, even when review by that court is discretionary. Wilson v. Foti, 832 F.2d 891, 893-94 (5th Cir. 1987). The exhaustion requirement is not satisfied if the petitioner presents new legal theories or entirely new factual claims in support of his federal habeas petition. Brown v. Estelle, 701 F.2d 494, 495 (5th Cir. 1983).

         In Louisiana the highest court is the Louisiana Supreme Court. See LSA-Const. art. 5, ยง 5(a). Thus, in order for a Louisiana prisoner to have exhausted his state court remedies he must have fairly presented the substance of his federal constitutional claims to the Louisiana Supreme Court in a procedurally correct manner, based on the ...


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