Opinion
CIVIL ACTION NO. 02-1305, SECTION "L" (1).
March 31, 2003.
REPORT AND RECOMMENDATION
This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITHOUT PREJUDICE.
Pursuant to 28 U.S.C. § 2254(e)(2), whether to hold an evidentiary hearing is now a statutorily mandated determination. According to Section 2254(e)(2), the district court generally may hold an evidentiary hearing only when the petitioner has shown that either the claim relies on a new, retroactive rule of constitutional law that was previously unavailable ( 28 U.S.C. § 2254(e)(2)(A)(i)) or the claim relies on a factual basis that could not have been previously discovered through the exercise of due diligence ( 28 U.S.C. § 2254(e)(2)(A)(ii)); and the facts underlying the claim show by clear and convincing evidence that, but for the constitutional error, no reasonable jury would have convicted the petitioner ( 28 U.S.C. § 2254(e)(2)(B)).
Petitioner, Leonard Perkins, is a state court prisoner incarcerated at the Louisiana State Penitentiary, Angola, Louisiana. On October 1, 1993, petitioner was found guilty of first degree murder in violation of La.Rev.Stat.Ann. § 14:30 (West 1991). On October 15, 1993, petitioner was sentenced to a term of life imprisonment at hard labor, without the benefit of probation, parole or suspension of sentence. On February 15, 1995, the Louisiana Fifth Circuit Court of Appeal affirmed petitioner's conviction, amended his sentence to give him credit for time served, and affirmed his conviction as amended. Because petitioner did not seek review of that decision in the Louisiana Supreme Court, his conviction and sentence became final under state law on March 1, 1995, pursuant to La.C.Cr.P. art. 922 (West 1995).
State Rec., Vol. XI of XII, trial transcript of October 1, 1993, p. 220; State Rec., Vol. IV of XII, minute entry dated October 1, 1993.
State Rec., Vol. XI of XII, transcript of October 15, 1993, p. 2; State Rec., Vol. IV of XII, minute entry dated October 15, 1993; State Rec., Vol. III of XII, commitment.
State v. Perkins, 652 So.2d 21 (La.App. 5th Cir. 1995) (No. 94-KA-366); State Rec., Vol. III of XIII. The matter was remanded to the state district court with instructions that petitioner be informed of the deadlines for filing a state post-conviction application.
La.C.Cr.P. art. 922 (West 1995) provides:
A. Within fourteen days of rendition of the judgment of the supreme court or any appellate court, in term time or out, a party may apply to the appropriate court for a rehearing. The court may act upon the application at any time.
B. A judgment rendered by the supreme court or other appellate court becomes final when the delay for applying for a rehearing has expired and no application therefor has been made.
C. If an application for a rehearing has been made timely, a judgment of the appellate court becomes final when the application is denied.
D. If an application for a writ of review is timely filed with the supreme court, the judgment of the appellate court from which the writ of review is sought becomes final when the supreme court denies the writ.
State Post-Conviction Proceedings
On or about September 9, 1996, petitioner filed with the state district court an application for post-conviction relief which was apparently mislaid. When the state district court did not rule on the application, petitioner sought a writ of mandamus from the Louisiana Fifth Circuit Court of Appeal in January, 1997. The intermediate appellate court ordered the state district court to "consider and act on" the post-conviction application on or before April 23, 1997. On April 28, 1997, the intermediate appellate court denied petitioner's application for a writ of mandamus, holding: "On April 14, 1997, the trial court ruled on petitioner's application for post-conviction relief. Accordingly, this writ application is denied as moot." The record filed with this Court does not support that conclusion. Rather, it appears that the only ruling issued on April 14, 1997, was the order of the state district court directing the state to file a response to petitioner's application within thirty days. It is unclear when, or if, the state district court actually ruled on the post-conviction application.Moreover, from that point, it is unclear exactly what transpired in state court. The state record contains numerous filings by petitioner and orders from all levels of the state judiciary. Unfortunately, it is not always possible to match up the documents so as gain an understanding of the exact sequence of events. To further complicate matters, the documents reference other filings that are apparently not included in the state record filed with this Court. The following is this Court's best guess as to the sequence of events in petitioner's state post-conviction proceedings:
June 2, 1997: Petitioner apparently filed another state post-conviction application on June 2, 1997.
November 18, 1997: In case number 97-KH-1143, petitioner filed with the Louisiana Fifth Circuit Court of Appeal a "Motion for Injunction in Writ of Mandamus to Suppliment [sic] and Compel Response."
November 24, 1997: In case number 97-KH-1 143, the Louisiana Fifth Circuit Court of Appeal denied petitioner's application, holding: "Relator's application does not disclose adequate grounds for the injunctive relief he seeks."
April 15, 1998: Petitioner filed with the state district court a motion for an evidentiary hearing.
June 25, 1998: Apparently construing petitioner's motion for an evidentiary hearing as an application for post-conviction relief, the state district court denied the application.
July 9, 1998: Petitioner filed with the state district court a motion for a writ of mandamus to compel the court to set forth its reasons for denying the post-conviction application on June 25, 1998.
July 14, 1998: The state district court denied petitioner's motion for written reasons.
October 15, 1998: In case number 98-KH-1085, petitioner filed with the Louisiana Fifth Circuit Court of Appeal a "Motion for Writ of Mandamas [sic] Seeking a Response of [sic] Order Concerning Post-Conviction."
December 4, 1998: In case number 98-KH-1085, the Louisiana Fifth Circuit Court of Appeal denied petitioner's application, holding: "Based on the district court's representation that relator's record does not contain an application for post conviction relief filed on or about August 1, 1998. Accordingly, this writ application is denied."
December 22, 1998: In case number 98-KH-1356, petitioner filed with the Louisiana Fifth Circuit Court of Appeal a "Motion for Reconsideration and/or Review in a Writ of Mandamas [sic]."
January 5, 1999: In case number 98-KH-1356, the Louisiana Fifth Circuit Court of Appeal denied petitioner's application, holding: "On the presentation, the application discloses no error in the trial court's ruling of July 14, 1998, on relator's Motion for Writ of Mandamus."
April 9, 1999: In case number 99-KH-987, petitioner filed with the Louisiana Supreme Court a "Motion for Writ of Review in Support of Application for Post-Conviction Relief."
June 22, 1999: Petitioner filed with the state district court a "Motion for Evidentiary Hearing and Aquittal [sic] of Conviction." It is unclear whether the state district court ruled on that motion.
July 27, 1999: The state district court issued an order denying petitioner's post-conviction application filed on June 2, 1997: It is unclear why the application was pending for more than two years.
August 8, 1999: In case number 99-KH-875, petitioner apparently filed with the Louisiana Fifth Circuit Court of Appeal an application for a writ of mandamus ordering the state district court to rule on a post-conviction application.
September 1, 1999: In case number 98-KH-875, the Louisiana Fifth Circuit denied petitioner's application for a writ of mandamus, holding: "On July 27, 1999, the trial court ruled on relator's Application for Post Conviction Relief. Accordingly, this writ application is moot."
September 17, 1999: In case number 99-KH-987, the Louisiana Supreme Court denied petitioner's application without assigning reasons. The Supreme Court indicated that its ruling related to the rulings of the Louisiana Fifth Circuit Court of Appeal in case numbers 97-KH-14, 97-KH-1143, 98-KH-1085, and 98-KH-1356.
October 7, 1999: In case number 99-KH-1117, petitioner apparently filed with the Louisiana Fifth Circuit Court of Appeal an application for a for a supervisory writ of review regarding the motion he filed in the district court on June 22, 1999.
October 21, 1999: In case number 99-KH-1117, the Louisiana Fifth Circuit Court of Appeal denied petitioner's application, holding: "Relator's Motion for an Evidentiary Hearing and Acquittal (sic) of Conviction, which was filed in the district court on June 22, 1999, raises repetitive claims already considered by the district court in relator's previous application for post conviction relief. Accordingly, this writ application is denied."
February 4, 2000: In case number 2000-KH-380, petitioner filed with the Louisiana Supreme Court a "Motion for Writ of Supervisory Writ of Review and/or Remedial Writ of Review of Petitioner's Motion for Newly Discovered Evidence and New Trial."
September 29, 2000: In case number 2000-KH-380, the Louisiana Supreme Court denied petitioner's application without assigning reasons. The Supreme Court indicated that its ruling related to the ruling of the Louisiana Fifth Circuit Court of Appeal in case number 98-KH-1356.
A post-conviction application is included in Volume III of the state record which was neither dated by petitioner nor date-stamped by the clerk of court. However, because it contains claims which roughly approximate the ones denied by the state district court on July 27, 1999, this Court assumes that it is that application which was filed on June 2, 1997.
State Rec., Vol. XII of XII.
Perkins v. 24th Judicial District Court, No. 97-KH-1143 (La.App. 5th Cir. Nov. 24, 1997) (unpublished); State Rec., Vol. XII of XII.
State Rec., Vol. I of XII.
State Rec., Vol. III of XII, order dated June 25, 1998.
State Rec., Vol. III of XII.
State Rec., Vol. III of XII, order dated July 14, 1998.
State Rec., Vol. XII of XII.
State v. Perkins, No. 98-KH-1085 (La.App. 5th Cir. Dec. 4, 1998) (unpublished); State Rec., Vol. XII of XII.
State Rec., Vol. XII of XII.
State v. Perkins, No. 98-KH-1356 (La.App. 5th Cir. Jan. 5, 1999) (unpublished).
State Rec., Vol. XII of XII.
State Rec., Vol. III of XII.
State Rec., Vol. III of XII, order dated July 27, 1999.
That writ application does not appear to be included in the state record filed with this Court.
Perkins v. Mamoulides, No. 99-KH-875 (La.App. 5th Cir. Sept. 1, 1999) (unpublished); State Rec., Vol. III of XII.
State ex rel. Perkins v. State, 747 So.2d 1097 (La. 1999) (No. 99-KH-987); State Rec., Vol. XII of XII.
That writ application does not appear to be included in the state record filed with this Court.
State v. Perkins, No. 99-KH-1 117 (La.App. 5th Cir. Oct. 21, 1999) (unpublished); State Rec., Vol. III of XII.
State Rec., Vol. XII of XII.
State ex rel. Perkins v. State, 769 So.2d 551 (La. 2000) (No. 2000-KH-380); State Rec., Vol. III of XII.
At that point, petitioner turned to this Court.
On April 17, 2002, long after filing the instant application, petitioner returned to the state district court once again to file a motion for an evidentiary hearing. State Rec., Vol. III of XII. That motion was denied on May 29, 2002. State Rec., Vol. II of XII, order dated May 29, 2002.
Federal Court Applications
On or about November 14, 2000, petitioner submitted for filing an application for federal habeas corpus relief which was accompanied by an application to proceed in forma pauperis. On November 28, 2000, the undersigned Magistrate Judge denied petitioner's application to proceed as a pauper on the ground that he had sufficient funds to pay the filing fee. Petitioner sought review of that denial by the United States District Judge, who affirmed the denial of pauper status on April 4, 2001. Petitioner never paid the filing fee and, therefore, that habeas corpus petition was never considered by the Court.In the interim, in an envelope metered on March 23, 2001, petitioner mailed this Court the instant federal application for habeas corpus relief asserting numerous grounds for relief. The undated application was stamped as having been tendered for filing on March 26, 2001. The application was unaccompanied by either an application to proceed in forma pauperis or the required filing fee. On April 10, 2001, the Clerk of Court informed petitioner that the required filing fee was $5.00 and that he could apply to proceed as a pauper if he had insufficient funds to pay the fee. Petitioner did not respond for more than one year. Finally, by check dated April 22, 2002, petitioner paid the $5.00 filing fee and his federal application was stamped as filed on April 30, 2002.
Rec. Doc. 1.
Rec. Doc. 8.
Rec. Doc. 8.
Timeliness
The state argues that petitioner's application is untimely. Generally speaking, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires that a petitioner bring his Section 2254 claims within one (1) year of the date on which his conviction or sentence became final. With respect to prisoners such as Perkins whose conviction and sentence became final prior to the enactment of the AEDPA, the Fifth Circuit has held that a one-year grace period applies and petitions may be considered timely if filed no later than April 24, 1997. Moore v. Cain, 298 F.3d 361, 365 (5th Cir. 2002), cert. denied, ___ U.S. ___, 2003 WL 659877 (Mar. 3,2003) (No. 02-8228); Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998); see also United States v. Flores, 135 F.3d 1000 (5th Cir. 1998) (applying one-year grace period to actions filed pursuant to 28 U.S.C. § 2255). Additionally, the AEDPA's one-year statute of limitations is tolled for the period of time during which a properly filed application for state post-conviction relief or other collateral review attacking a conviction or sentence is pending in state court. See Fields v. Johnson, 159 F.3d 914 (5th Cir. 1998); 28 U.S.C. § 2244(d)(2).
Rec. Doc. 7, pp. 5-8.
28 U.S.C. § 2244(d) provides:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
In arguing that petitioner's application is untimely, the state does not even attempt to reconstruct the convoluted history of petitioner's state post-conviction proceedings. Rather, the state simply argues that, regardless of what transpired in state court, the state court proceedings ended on September 29, 2000, when the Louisiana Supreme Court denied petitioner's writ application in case number 2000-KH-380. The state then notes that petitioner's federal application was stamped as filed on April 30, 2002. Therefore, the state reasons that the application must be untimely because more than one year elapsed between the date of the Louisiana Supreme Court's denial and the date of this Court's filing stamp on the federal application.
The state's analysis, however, proceeds from the faulty premise that the Court's filing stamp is of any relevance in determining the application's timeliness. The United States Fifth Circuit Court of Appeals has held: "Under the `mailbox rule,' a prisoner's federal habeas corpus petition is deemed filed when he delivers the petition to prison officials for mailing to the district court." Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (citing Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998)). Accordingly, petitioner's application was "filed" when he delivered it to penal authorities for mailing, not when stamped as filed by the Clerk of Court.
In the instant case, petitioner did not date his federal application and there is no indication when he delivered it to prison authorities for mailing. However, it was received by this Court in an envelope bearing a metered stamp dated March 23, 2001. Therefore, petitioner must have delivered the petition to prison authorities on or before that date. Accordingly, in the absence of any date on the petition itself or of any indication of when petitioner delivered the petition to prison authorities, this Court will consider March 23, 2001, as the date of filing.
The Court is given pause by the fact that petitioner waited more than a year after filing to pay the required $5.00 filing fee for the instant application. However, the United States Fifth Circuit Court of Appeals has indicated that the date the filing fee is paid is irrelevant in determining when such an application is "filed." In Spotville v. Cain, 149 F.3d 374 (5th Cir. 1998), Jewel Spotville, a state prisoner, delivered a pro se federal habeas corpus petition and an application to proceed in forma pauperis to prison authorities in July, 1995, approximately nine months before the effective date of the AEDPA. Pauper status was denied, but Spotville did not pay the filing fee until one year after the effective date of the AEDPA. The issue before the Fifth Circuit was whether Spotville's petition was "filed" after the effective date of the AEDPA and therefore subject to its provisions. The Fifth Circuit held that the "mailbox rule," not fee payment, was still determinative, noting: "[A] rule that payment of a filing fee upon the subsequent denial of IFP status determines the applicability of the AEDPA would be contrary to this court's traditional disposition of leniency toward pro se litigants."Id. at 377.
The Court recognizes that Spotville is arguably distinguishable. For example, Spotville involved the applicability of the AEDPA rather than a timeliness determination; however, the Court is unconvinced thatSpotville is distinguishable on that basis alone. Perhaps a stronger argument could be made that the case is distinguishable on the basis that, unlike in Spotville, petitioner failed to submit with his petition either a pauper application or the filing fee as required by Rule 3(a) of the Rules Governing Section 2254 Cases in the United States District Courts. However, the Court declines to attempt to distinguishSpotville on that basis, given the Fifth Circuit's tradition of leniency toward pro se litigants.
In light of the foregoing, it appears that petitioner's federal application was timely filed. Because petitioner's conviction became final prior to the effective date of the AEDPA, his one-year period to file his federal habeas corpus application commenced on April 24, 1996. Moore v. Cain, 298 F.3d 361, 365 (5th Cir. 2002), cert. denied, ___ U.S. ___, 2003 WL 659877 (Mar. 3, 2003) (No. 02-8228). After one-hundred thirty-seven (137) days had elapsed, petitioner's one-year period was tolled by the filing of his first state post-conviction application on September 9, 1996. Because of deficiencies in the state record, this Court, like the state itself, cannot determine with any certainty exactly what transpired in the Louisiana state courts regarding that application or petitioner's subsequent state applications. Therefore, this Court will toll the period from petitioner's filing of his first state post-conviction application on September 9, 1996, until September 29, 2000, when the Louisiana Supreme Court denied the writ application in case number 2000-KH-380. After petitioner's one-year period began to run again on September 29, 2000, an additional one hundred seventy-four (174) days of his one-year period elapsed before he filed the instant habeas corpus application on March 23, 2001. Because a total of only three hundred eleven (311) days of his one-year period had elapsed at that point, his federal application was timely filed.
The Court notes that several of petitioner's state court filings related at least in part to requests for writs of mandamus. The United States Fifth Circuit Court of Appeals has held that an application for writ of mandamus does not constitute an application for state collateral review so as to toll the AEDPA statute of limitations. Moore v. Cain, 298 F.3d 361, 366-67 (5th Cir. 2002). However, in the instant case, petitioner's applications at times included requests for substantive review. Moreover, the state record filed in this proceeding does not include copies of some of the applications petitioner filed in the state courts, and it is unclear when or of the state courts ruled on some of his post-conviction applications. All of those considerations taken together lead this Court to the conclusion that it is necessary to toll the entire period from September 9, 1996, until September 29, 2000.
As noted, petitioner previously submitted a federal habeas corpus application in Miscellaneous Action 00-3486. In that petitioner's instant application is timely regardless, the Court need not consider what effect, if any, that action had on the running of the statute of limitations.
Exhaustion
The state argues that petitioner failed to exhaust his state court remedies as to some of the claims presented in his federal application. Pursuant to 28 U.S.C. § 2254(b)(1)(A), a petitioner must normally first exhaust his remedies in state court before seeking habeas corpus relief from the federal courts. The United States Fifth Circuit Court of Appeals has noted:
The 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. The habeas applicant need not spell out each syllable of the claim before the state court to satisfy the exhaustion requirement. This requirement is not satisfied if the petitioner presents new legal theories or new factual claims in his federal application.Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998) (footnotes omitted).
In petitioner's federal application, he argues that he is entitled to habeas corpus relief on the following eleven grounds:
1. Petitioner's counsel was ineffective when he failed to advise the court of his assistant's inexperience;
2. Petitioner's counsel was ineffective when he failed to investigate the fact that another suspect, Stevie Johnson, had been arrested and that items were missing from a forensic analysis sheet submitted by Pamela Williams;
3. Petitioner's counsel was ineffective when he failed to pursue a mistrial based on the testimony of Pamela Williams;
4. Petitioner's counsel was ineffective when he failed to investigate the fact that the victim, Penny Rodrigue, gave a statement in another criminal case which could have served as the motive for her murder;
5. Petitioner's counsel was ineffective when he failed to recuse himself because of his prejudice against African Americans;
6. The trial court erred in not granting a new trial after the testimony of Pamela Williams;
7. The trial court erred in not granting a post-conviction evidentiary hearing based on newly discovered evidence;
8. The prosecution failed to disclose exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963);
9. The prosecution engaged in misconduct;
10. Petitioner was denied due process and a fair trial; and
11. Petitioner's counsel was ineffective when he failed to investigate a material witness who first reported the crime.
As noted, in order for these claims to be exhausted, they must first have been fairly presented to the state's highest court, the Louisiana Supreme Court. Petitioner has filed in the Louisiana Supreme Court two writ applications relevant to the exhaustion issue.
Petitioner also filed with the Louisiana Supreme Court a "Motion for Writ of Mandamas [sic] for Injuction [sic] to Obtain Transcripts" in case number 97-KH-764. State Rec., Vol. XII of XII. Because that application related only to production of documents and presented no claims directly challenging petitioner's conviction or sentence, it is irrelevant to the issue of exhaustion.
In case number 99-KH-987, petitioner filed a "Motion for Writ of Review in Support of Application for Post-Conviction Relief." Although that application is fairly inscrutable, petitioner apparently made the following claims:
State Rec., Vol. XII of XII.
1. The intermediate appellate court erred in case number 98-KH-1085 in holding that the state record did not contain a post-conviction application filed on or about August 1, 1998;
2. The state district court and the intermediate appellate court exceeded the time limitations for ruling on petitioner's applications;
3. The prosecution may have been aware of another suspect in the case;
4. Petitioner's counsel was ineffective when he failed to do an adequate investigation;
5. Petitioner's counsel's assistant was not competent to proceed for lack of experience;
6. Petitioner's counsel was ineffective when he failed to ask for a recess based on his exhaustion; and
7. Petitioner received ineffective assistance of counsel on appeal.
In case number 2000-KH-380, petitioner filed with the Louisiana Supreme Court a "Motion for Writ of Supervisory Writ of Review and/or Remedial Writ of Review of Petitioner's Motion for Newly Discovered Evidence and New Trial." That application is rambling and largely incoherent. However, construing the application in the most liberal manner possible, the Court can glean the following claims:
State Rec., Vol. XI of XII.
1. Petitioner was arrested without probable cause;
2. The prosecution allowed a witness to give false testimony;
3. The prosecution suppressed exculpatory evidence;
4. The prosecution presented "tainted evidence";
5. The acts and testimony of Pamela D. Williams obstructed justice;
6. The prosecutor made improper arguments to the grand jury;
7. Petitioner was denied his rights to cross-examination, impeachment, and due process;
8. Petitioner's counsel was ineffective when he failed to object, argue, or discover that Stevie Johnson had been arrested;
9. Petitioner's counsel was ineffective when he failed to object, argue, or discover that "state agencies in violation of statute to suppress exculpatory evidence";
10. Petitioner's counsel was ineffective when he failed to object, argue, or discover that Penny Rodrigue was to testify in another murder case;
11. Petitioner's counsel was denied adequate discovery;
12. Petitioner's counsel failed to adequately investigate the case; and
13. The state district court should have granted petitioner an evidentiary hearing based on the newly discovered evidence.
Because petitioner's filings with the Louisiana Supreme Court were so unfocused and disjointed, it is difficult to say with any precision which of petitioner's federal claims, if any, were "fairly presented" to that court for consideration. Nevertheless, this Court has no difficulty in finding that at least two of petitioner's federal claims were not presented to the Louisiana Supreme Court at all, fairly or otherwise. For example, petitioner has never argued to the Louisiana Supreme Court that his counsel was ineffective in failing to pursue a mistrial based on the testimony of Pamela Williams and to recuse himself because of his prejudice against African Americans. While it is true that petitioner made allegations of ineffective assistance of counsel on other bases in both of his relevant writ applications to the Louisiana Supreme Court, that is insufficient to constitute exhaustion of the ineffective assistance claims presented to this Court on different bases not mentioned to the Louisiana Supreme Court. See Ogan v. Cockrell, 297 F.3d 349,358 (5th Cir.), cert. denied, ___ U.S. ___, 123 S.Ct. 582, 154 L.Ed.2d 461 (2002); Bums v. Estelle, 695 F.2d 847, 849-50 (5th Cir. 1983). Therefore, at a minimum, petitioner has failed to exhaust the third and fifth claims brought in his federal application. Accordingly, petitioner's federal petition contains both exhausted and unexhausted claims. "A habeas petition containing both exhausted and unexhausted claims is a `mixed' petition which should be dismissed without prejudice." Alexander v. Johnson, 163 F.3d 906, 908 (5th Cir. 1998).
In addition, the Court notes a claim generally is not considered to have been fairly presented to the state's highest court unless it was presented in a procedurally proper manner according to state court rules. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). It may be questionable whether many of petitioner's remaining claims that were presented in some fashion to the Louisiana Supreme Court were presented in a procedurally proper manner. For example, it appears that petitioner would alter his applications in various ways, such as by adding some claims and dropping others, during the process of seeking review of his many denials in the Louisiana appellate courts. However, because at least two of petitioner's claims were not presented to the Louisiana Supreme Court at all, this Court need not reach the question of whether the remaining claims were presented to the Louisiana Supreme Court in a procedurally proper manner so as to be exhausted.
RECOMMENDATION
Accordingly, IT IS RECOMMENDED that the petition for federal habeas corpus relief filed by Leonard Perkins BE DISMISSED WITHOUT PREJUDICE for failure to exhaust state court remedies.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation contained in a magistrate judge's report and recommendation within 10 days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).