Baggs v. Terrell et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATIONS 22 ; ORDER GRANTING 23 MOTION for Leave to File Amended Petition for Habeas Corpus. Matter referred to Magistrate Judge for a Report and Recommendation on the merits of pla's remaining claims. Signed by Judge Mary Ann Vial Lemmon on 9/20/12. (NEF: Mag. Roby)(cbn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KURT BAGGS

CIVIL ACTION

VERSUS

NO. 09-6808

TERRY TERRELL, WARDEN ALLEN
CORRECTIONAL CENTER

SECTION “S”(4)

ORDER
The Court, having considered the complaint, the record, the applicable law, the Report and
Recommendation of the United States Magistrate Judge (Doc. #22), the petitioner’s Objection to the
Magistrate Judge’s Report and Recommendation (Doc. #24), the respondant’s Response to the
Petitioner’s Objections to the Report and Recommendations (Doc. #25), and the petitioner’s Motion
for Leave to Amend Petition for Habeas Corpus (Doc. #23), hereby approves the Report and
Recommendation of the United States Magistrate Judge as to the finding that petitioner failed to
exhaust his state court remedies on the following four claims: (1) ineffective assistance of counsel
for failing to present evidence of Baggs’ prior medical history or prescription drug use, failing to
recognized Baggs’ incompetence to accept a plea, advising Baggs to accept a plea with two
consecutive ten year sentences, and not seeking a determination of competency at the time of the
offense or on the day of the guilty plea and sentencing; (2) indeterminate sentence based on the
consecutive assignment of the sentences at the same time; (3) no opportunity for proportionality
assessment where there was no individual appraisal of the appropriateness and proportionality of
the sentences; and (4) cumulative errors by counsel amounting to ineffective assistance of counsel
for failure to obtain prior medical records, and adopts it as its opinion in this matter. However, the
court finds that Baggs did exhaust his state court remedies with respect to his claim that his rights

under the Sixth Amendment were violated when the trial court considered the hearsay treatment
notes of Dr. Higgins in its denial of his motion for post conviction relief.
In his Motion for Leave to Amend Petition for Habeas Corpus, Baggs prays that this court
dismiss the previously referenced unexhausted claims and proceed on the exhausted claims.
IT IS ORDERED that Baggs’ Motion for Leave to Amend Petition for Habeas Corpus
(Doc. #23) is GRANTED.
IT IS FURTHER ORDERED that Baggs’s claims of (1) ineffective assistance of counsel
for failing to present evidence of Baggs’ prior medical history or prescription drug use, failing to
recognized Baggs’ incompetence to accept a plea, advising Baggs to accept a plea with two
consecutive ten year sentences, and not seeking a determination of competency at the time of the
offense or on the day of the guilty plea and sentencing; (2) indeterminate sentence based on the
consecutive assignment of the sentences at the same time; (3) no opportunity for proportionality
assessment where there was no individual appraisal of the appropriateness and proportionality of
the sentences; and (4) cumulative errors by counsel amounting to ineffective assistance of counsel
for failure to obtain prior medical records are DISMISSED WITHOUT PREJUDICE for failure
to exhaust.
IT IS FURTHER ORDERED that this matter is hereby referred to the United States
Magistrate Judge for a Report and Recommendations on the merits of Baggs’ remaining claims.
Hello This is a Test
New Orleans, Louisiana, this __________ day of __________________________, 2012.
September

____________________________________
UNITED STATES DISTRICT JUDGE

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