Opinion
CIVIL ACTION NO. 15-631-P
07-28-2016
HENRY LARRY MOTON v. WARDEN JERRY GOODWIN
JUDGE HICKS
REPORT AND RECOMMENDATION
In accordance with the standing order of this court, this matter was referred to the undersigned Magistrate Judge for review, report and recommendation.
STATEMENT OF CLAIM
Before the court is a petition for writ of habeas corpus filed by pro se petitioner Henry Larry Moton ("Petitioner"), pursuant to 28 U.S.C. §2254. This petition was received and filed in this court on March 13, 2015. Petitioner is incarcerated at the David Wade Correctional Center in Homer, Louisiana. He challenges his state court convictions and sentences. He names Warden Jerry Goodwin as respondent.
On June 17, 2010, Petitioner was convicted of one count of illegal use of a firearm while committing a crime of violence and one count of possession of a firearm by a convicted felon in the Louisiana First Judicial District Court, Parish of Caddo. On August 18, 2010, he was adjudicated a multiple offender. On September 2, 2010, he was sentenced to 40 years imprisonment at hard labor as to the illegal use conviction and 10 years imprisonment at hard labor as to the possession of a firearm conviction. The trial court ordered the sentences to run consecutively.
In support of this petition, Petitioner alleges (1) he received ineffective assistance of counsel, and (2) prosecutorial misconduct.
For the reasons stated below, Petitioner's application for habeas relief should be dismissed for failure to exhaust state court remedies.
LAW AND ANALYSIS
Habeas corpus relief is available to a person who is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. However, the right to pursue habeas relief in federal court is not unqualified. 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 all available state remedies. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198 (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. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, (1971); Rose, 455 U.S. at 509, 102 S. Ct. at 1198. Moreover, in the event that the record or the habeas corpus petition, on its face, reveals that the petitioner has not complied with the exhaustion requirement, a United States district court is expressly authorized to dismiss the claim. See Resendez v. McKaskle, 722 F.2d 227, 231 (5th Cir. 1984).
Petitioner has failed to demonstrate that he has properly exhausted his claims in the state courts. The documentation provided by Petitioner demonstrates only that he raised his ineffective assistance of counsel claim in the state trial court in an application for post- conviction relief. Thus, Petitioner fails to demonstrate that he exhausted his state court remedies prior to filing his petition in this court.
Accordingly;
IT IS RECOMMENDED that Petitioner's application for writ of habeas corpus be DISMISSED WITHOUT PREJUDICE.
OBJECTIONS
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties aggrieved by this recommendation have fourteen (14) days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court, unless an extension of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party's objection within fourteen (14) days after being served with a copy thereof. Counsel are directed to furnish a courtesy copy of any objections or responses to the District Judge at the time of filing.
A party's failure to file written objections to the proposed findings, conclusions and recommendations set forth above, within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking, on appeal, the proposed factual findings and legal conclusions that were accepted by the district court and that were not objected to by the aforementioned party. See Douglas v. U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc).
An appeal may not be taken to the court of appeals from a final order in a proceeding under Section 2254 unless a circuit justice, circuit judge, or district judge issues a certificate of appealability. 28 U.S.C. § 2253(c); F.R.A.P. 22(b). Rule 11 of the Rules Governing Section 2254 Proceedings for the U.S. District Courts requires the district court to issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A certificate may issue only if the applicant has made a substantial showing of the denial of a constitutional right. Section 2253(c)(2). A party may, within fourteen (14) days from the date of this Report and Recommendation, file a memorandum that sets forth arguments on whether a certificate of appealability should issue.
THUS DONE AND SIGNED, in chambers, in Shreveport, Louisiana, this 28th day of July, 2016.
/s/ _________
Mark L. Hornsby
U.S. Magistrate Judge