United States District Court, W.D. Louisiana, Lake Charles Division
JON DICKERSON D.O.C. # 428915
D. CAIN, JR. MAGISTRATE Judge
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
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.
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
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.
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.
State Collateral Review
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).
Federal Habeas Petition
instant petition was filed in this court on November 28,
2018, and raises claims of insufficient evidence and
ineffective assistance of counsel. Doc. 1.
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).
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
Exhaustion and Procedural Default
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.
Exhaustion of State Court Remedies
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).
Louisiana the highest court is the Louisiana Supreme Court.
See LSA-Const. art. 5, § 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 ...