Patterson v. Cooley et al

Filing 26

ORDER & REASONS: The instant habeas corpus petition is DISMISSED WITHOUT PREJUDICE for failure to exhaust state claims. Signed by Judge Ivan L.R. Lemelle on 10/29/2015.(mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAMON PATTERSON

CIVIL ACTION

VERSUS

NO. 15-0106

KEITH COOLEY AND THE
STATE OF LOUISIANA

SECTION "B"(4)
ORDER AND REASONS

NATURE OF THE CASE AND HABEAS PETITION:
This habeas petition was filed by Mr. Damon Patterson
(hereinafter “Petitioner” or “Patterson”) on January 16, 2015.1
In his petition, Patterson asserts fifteen grounds for relief.
Prior to filing his federal habeas petition, petitioner
submitted an application for post-conviction relief to the
state trial court in which he asserted the exact same grounds
for relief.2

Petitioner has conceded that his post-conviction

relief application is pending before a Louisiana state court.3
In the Report and Recommendation, the Magistrate Judge
recommends that the petitioner’s habeas corpus petition be
dismissed without prejudice for failure to exhaust state court
remedies.

For the reasons below, IT IS ORDERED that the

petition is DISMISSED WITHOUT PREJUDICE.

1
2
3

Rec. Doc. No. 1.
Doc. No. 22 at 3.
See Rec. Doc. No. 1, pp. 3, 5.

FACTS AND PROCEDURAL HISTORY:
On November 15, 2011, Petitioner was charged by a Bill of
Information in Orleans Parish on four counts:

felon in

possession of a firearm, resisting arrest, possession of
cocaine, and use or possession with intent to use paraphernalia.4
Petitioner represented himself in the matter and was assisted by
stand-by counsel at the trial.5

The jury found petitioner guilty

on counts one and two, but was unable to reach a verdict on
count three.6

Further, the trial court judge ruled on count four

and found the petitioner guilty as charged.7
The court sentenced Patterson to concurrent terms in prison
for counts one, two, and four.
retrial for count three.

The court later rescheduled a

Petitioner did not appeal the

convictions. However, on July 1, 2014, petitioner filed a postconviction relief application before the state trial court. As
for count three, the State and defendant held additional
pretrial proceedings that spanned two years.8

So far, the record

reflects no ruling on the state application for post-conviction
relief and no retrial on count three.

Petitioner concedes that

his post-conviction relief application is pending before the
state trial court.

4
5
6
7
8

St.
St.
St.
St.
The

Rec. Vol. 1
Rec. Vol. 1
Rec. Vol. 1
Rec. Vol. 1
record does

Further, evidence demonstrates that

of 2, Bill of Information, 11/15/11.
of 2, Trial Minutes, 8/13/12; Trial Minutes, 8/15/12.
of 2, Trial Minutes, 8/15/12.
of 2, Minute Entry, 8/23/12.
not demonstrate whether the retrial has yet occurred.

2

Petitioner is also pursuing other supervisory writs in the
Louisiana Fourth Circuit Court of Appeal.
On January 16, 2015, Petitioner filed a federal habeas
corpus petition asserting the exact same fifteen grounds for
relief as his state post-conviction relief application.9

The

State has filed an opposition arguing that all challenges to the
pending count three charge (possession of cocaine) are premature
and unexhausted as that count is scheduled for retrial.10

The

State further argues that the habeas claims brought pursuant to
28 U.S.C. § 2254 are unexhausted, except for the second claim
challenging the denial of a preliminary hearing which was
exhausted in a pretrial proceeding.11

9

In the Report and

These grounds for relief include: (1) petitioner’s imprisonment resulted from
an unlawful arrest in violation of his right to due process; (2) petitioner
was deprived of his right to a preliminary hearing; (3) the Trial Court
improperly denied petitioner’s motion to suppress evidence; (4) petitioner
received ineffective assistance from co-counsel; (5) the trial court erred in
not instructing the jury on responsive verdicts for the resisting arrest
charge and in denying the motion for post-verdict judgment of acquittal; (6)
the bill of information was invalid and fatally deficient; (7) the trial
court erred in allowing the state to play the recording of an out-of-court
witness statement for the jury; (8) the trial court erred in allowing the
petitioner to be convicted as a felon in possession on insufficient evidence;
(9) the conviction was based on evidence obtained after an unlawful search
done without consent; (10) the chain of evidence custody was invalid and
insufficient; (11) petitioner’s conviction and imprisonment was obtained
through violations of due process and the right to a fair and impartial trial
where the State suppressed favorable evidence, relied on false testimony,
made improper remarks to the jury, and coached witnesses before their
testimony; (12) the trial court erred in failing to rule on the motion to
quash the bill of information prior to trial; (13) the evidence was
insufficient to support the felon in possession conviction; (14) petitioner
should have been given an opportunity to file out-of-time supervisory writ
applications regarding the denial of certain pretrial and post-verdict
motions; and (15) that the Trial Court erred in preventing him from filing
post-verdict motions by allowing the sheriff’s deputies to confiscate his
papers.
10 Rec. Doc. Nos. 20, 21.
11 Id.

3

Recommendation, the Magistrate Judge notes that Petitioner filed
his habeas petition as a challenge to his judgment of conviction
for counts one, two, and four.

The federal habeas petition does

not indicate that petitioner wants to challenge the pending
count three charge in this federal petition.

Therefore, this

memorandum analyzes the State’s exhaustion defense as it relates
to petitioner’s other three convictions.
PETITIONER’S OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION
Petitioner contends that he is exempt from the exhaustion
requirement because he is presently being denied access to the
state courts.12

Further, petitioner asserts that he has prima

facie evidence that demonstrates that the State is purposely
restraining his ability to exhaust his pending state claims by
intercepting his letters to state appellate courts.13
Nevertheless, petitioner acknowledges that his state claims are
currently pending before the state trial court and have not been
resolved or presented for review in the higher state courts.14
THE DOCTRINE OF EXHAUSTION
Under 28 U.S.C. § 2254, an application for a writ of habeas
corpus shall not be granted unless the applicant first exhausts

12

Petitioner’s Motion Objecting to the Magistrate’s Report and Recommendation
pg. 2 (Petitioner specifically states that his mail is being intercepted,
being denied access to legal resources such as to a law library, case law,
and copy machines).
13
Rec. Doc. No. 23 at 4.
14 Id.

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all available state court remedies. 28 U.S.C. § 2254(b)(1)(A).
The well-established test for exhaustion requires that the
“substance of the federal habeas claim [be] fairly presented to
the highest state court.” Whitehead v. Johnson, 157 F.3d 384,
387 (5th Cir. 1998).

If a habeas petition contains both

exhausted and unexhausted claims, then the court should dismiss
the petition without prejudice.

Rhines v. Weber, 544 U.S. 269,

273-74 (2005); Rose v. Lundy, 455 U.S. 509, 518-19(requiring
“total exhaustion” of claims in state courts).
In the present case, Petitioner concedes that he has not
exhausted all of the claims contained in his state postconviction relief application. However, Petitioner asserts, and
the State concedes, that his second claim of not having a
preliminary hearing is exhausted.15 This makes Petitioner’s
habeas application mixed with both exhausted and unexhausted
claims. Therefore, under Rhines, 544 U.S. at 273-74,
Petitioner’s federal habeas petition should be dismissed without
prejudice as the petition consists of non-exhausted state
claims.

Once Petitioner exhausts all of his state remedies,

then he may bring all his claims in a federal petition of habeas
corpus.

However, Petitioner may bring his single exhausted

15

Rec. Doc. No. 22 at 5 (The record demonstrates that the second claim
challenging the denial of a preliminary hearing was exhausted in pretrial
proceedings).

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claim, but will lose any other non-exhausted claim if he chooses
to do so.
THE FUTILITY EXCEPTION TO THE EXHAUSTION REQUIREMENT
Petitioner argues that his legal outgoing mail is being
intercepted by the State which denies his ability to exhaust
state remedies. In certain circumstances, a Petitioner may be
exempted from the exhaustion requirement.

The exhaustion

requirement may be excused when “there is an absence of
available State corrective process” or when “circumstances exist
that render such process ineffective to protect the rights of
the applicant.” 28 U.S.C. § 2254(b)(1)(B).

The Supreme Court

first recognized the exception in Marino v. Ragen, where Justice
Rutledge, in his concurrence, stated that when state remedies
are “so intricate and ineffective that in practical effect they
amount to none” and “[offer] no adequate remedy to prisoners”,
then exhaustion of state remedies is futile.
332 U.S. 561, 565 (1947).

Marino v. Ragen,

In Marino, the court found that the

Illinois procedural process for exhaustion was so extensive and
confusing that it did not allow the Petitioner to exhaust his
state claims. Marino, 332 U.S. at 564-65.

Further, this Court

previously applied the futility exception in Nicks v. Cain,
where it was clear that the Petitioner’s habeas claims had
already been considered by the Supreme Court of Louisiana. Nicks
v. Cain, 2005 WL 1578024, No. Civ. A. 04-0519, at *4 (E.D. La.
6

June 30, 2005). This Court determined that sending the case back
to the Supreme Court of Louisiana would be futile because there
was no reason to believe that sending the case back would result
in a different outcome.

In addition, the Fifth Circuit has

taken the position that exceptions to the exhaustion requirement
only apply in extraordinary circumstances, and the prisoner
bears the burden of demonstrating the futility or unavailability
of administrative review. Fuller v. Rich, 11 F.3d 61, 62 (5th
Cir. 1994).
Here, Petitioner has not specifically demonstrated to the
court that prison administrative remedies have been exhausted.
He has not shown that he has filed a complaint with prison
authorities or that he has appealed a complaint that has been
denied.

All that Petitioner has done is allege in his habeas

petition that his legal outgoing mail has been intercepted.16
Once Petitioner exhausts administrative remedies, then
Petitioner may go forward with the claim that attempts to attain
state remedies are futile if he still cannot access the state
courts. See Fuller, 11 F.3d at 62.

Petitioner will then have

the burden of specifically demonstrating how the State
intercepts his legal mail or is otherwise blocking his attempts
to bring his claims in state court.

This could include

presenting evidence of certified mail receipts with no return
16

Rec. Doc. No. 23 pg. 2.

7

date and written statements from clerks of courts of appeal
stating that Petitioner’s legal mail was never delivered.

Until

then, Petitioner’s writ should be dismissed until administrative
remedies are exhausted.
CONCLUSION
Having considered the Magistrate’s Report and
Recommendation, the Petitioner’s Objections to the Magistrate’s
Report and Recommendation, and the applicable law, IT IS ORDERED
that the instant habeas corpus petition is DISMISSED WITHOUT
PREJUDICE for failure to exhaust state claims.

Petitioner

should exhaust prison administrative remedies to cure mail
interception.

If that does not cure his inability to access

state courts, then he may replead on futility grounds.

If it

does, then he must exhaust state court remedies before
repleading.

New Orleans, Louisiana, this 29th day of October, 2015.

____________________________
UNITED STATES DISTRICT JUDGE

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