Opinion
CIVIL ACTION NO. 02-1305, SECTION "L"(1).
June 2, 2003.
ORDER REASONS
Before the Court is petitioner Leonard Perkins' Objections to the United States Magistrate Judge's Report and Recommendation that the petitioner's claims for relief pursuant to 28 U.S.C. § 2254 should be dismissed without prejudice for failure to exhaust available remedies. Having considered the entire record, including the state court record, the applicable law, the Magistrate's Report and Recommendation, and petitioner's objections to the report, the Court approves the Magistrate's Report and Recommendation and adopts it as its opinion herein. The Court further sets forth its response to the petitioner's objections.
I. FACTS
Petitioner was convicted in state court of first degree murder in violation of Title 14 of the Louisiana Revised Statutes, Section 30 on October 1, 1993. On October 15, 1993, the petitioner was sentenced to a term of life imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence. His conviction was affirmed by the Louisiana Fifth Circuit Court of Appeal in 1995, and the petitioner did not seek review of that decision in the Louisiana Supreme Court.
The petitioner does not dispute the Magistrate's findings regarding the dates of his filing various petitions for relief in all levels of the state court system. To address the petitioner's objections to the Magistrate's Report and Recommendation, the Court focuses the petitioner's two writ applications to the Louisiana Supreme Court. The first application, filed on April 9, 1999 and docketed case number 99-KH-987 was denied by the court on September 17, 1999. The second application was filed on February 4, 2000, docketed case number 2000-KH-380, and was denied on September 29, 2000. Following that decision, the petitioner field the instant application for habeas relief on March 23, 2001.
The Court notes that the Magistrate determined this to be the date of filing because that was the date the petition's envelope was stamped when it was received by this Court. No action was taken on the petition for more than a year because the petitioner did not pay the necessary filing fee for more than one year after mailing his application.
After sifting through the state court record, the Magistrate determined first that the petitioner's application was timely, a finding not disputed in this Court. The Magistrate further reviewed the grounds sought for relief in this Court as well as those claims presented by the petitioner in his writ applications to the Louisiana Supreme Court. The Magistrate concluded that the petitioner had not exhausted all of his remedies in state court because he asserted two grounds for relief in this Court not presented for review to the Louisiana Supreme Court. Specifically, the Magistrate concluded that, at a minimum, the petitioner had never argued to the supreme court that his attorney was ineffective for failing to pursue a mistrial based on the testimony of Pamela Williams and for failing to recuse himself because of his prejudice against African Americans. Accordingly, the magistrate recommended that the petition be dismissed without prejudice. Petitioner disputes this conclusion and argues that he did present these claims to the Louisiana Supreme Court.
II. ANALYSIS
As the Magistrate correctly noted, under 28 U.S.C. § 2254(b)(1)(A), a state prisoner may not seek relief in the federal system, until "the applicant has exhausted the remedies available in the courts of the State." Id. In Whitehead v. Johnson, 157 F.3d 384 (5th Cir. 1998), the Fifth Circuit held that "[t]he exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court. . . . A federal court claim must be the `substantial equivalent' of one presented to the state courts if it is to satisfy the `fairly presented' requirement." Id. at 387. Also, in Dupuy v. Butler, 837 F.2d 699 (5th Cir. 1988), the Fifth Circuit noted that a claim is not fairly presented to the state supreme court unless it is made in a procedurally proper manner. Id. at 702.
Petitioner's argument is based on a letter sent to the Louisiana Supreme Court requesting an extension of time on his writ application to allow the court to address certain issues petitioner was seeking to raise in the Fifth Circuit Court of Appeal. The Louisiana Supreme Court responded with a letter indicating the petitioner's papers were returned unfiled because the petitioner had failed to provide the court with the lower courts' orders he was appealing. Thus, the petitioner's claims were never considered on their merits. Accordingly, his claims were not exhausted, and he is not yet entitled to relief from this Court pursuant to § 2254(b)(1)(A).
III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that the petitioner's § 2254 application is DENIED and his federal habeas claims are DISMISSED WITHOUT PREJUDICE for failure to exhaust state remedies.