Opinion
Civil Action 20-176-P
04-13-2020
JAMES SORENSON v. WARDEN
REPORT AND RECOMMENDATION
Mark L. Hornsby, U.S. Magistrate Judge
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 James Sorenson, pursuant to 28 U.S.C. §2254. This petition was received and filed in this court on February 7, 2020. Petitioner is incarcerated in the Tensas Parish Detention Center in Waterproof, Louisiana. He challenges his state court convictions and sentences. Petitioner names Marita Lawrence and the Bossier Parish District Attorney as respondents.
On July 26, 2016, Petitioner pleaded guilty to two counts of distribution of methamphetamine and two counts of possession of methamphetamine in the Louisiana Twenty-Sixth Judicial District Court, Parish of Bossier. He was sentenced to 15 years imprisonment at hard labor as to each of the distribution of methamphetamine convictions and 5 years imprisonment at hard labor as to each of the possession of methamphetamine convictions.
In support of this petition, Petitioner alleges the search and seizure were illegal.
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 not exhausted his available state court remedies as to the claims presented in this petition. Petitioner admits that his motions challenging his convictions and sentences have not yet been ruled on by the state courts [Doc.3, pp. 2, 3]. Thus, Petitioner did not exhaust 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.