Peek v. Tanner et al
Filing
17
ORDER AND REASONS ADOPTING REPORT AND RECOMMENDATIONS 15 . For the reasons herein, the Court APPROVES the Magistrate Judge's Report and Recommendations and ADOPTS it as its opinion in this matter. ORDERED that Petitioner David Peek's 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus is hereby DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan on 6/10/2019.(sbs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAVID PEEK,
Plaintiff
CIVIL ACTION
VERSUS
NO. 18-604
ROBERT C. TANNER,
Defendant
SECTION: “E”(4)
ORDER AND REASONS
Before the Court is Petitioner David Peek’s Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254.1 On March 22, 2018, the State filed a response to the
Petition.2 This matter was referred to the United States Magistrate Judge, who issued a
Report and Recommendation on July 26, 2018.3 Magistrate Judge Karen Wells Roby
recommended that the Petition be dismissed with prejudice.4 Petitioner timely objected
to the magistrate judge’s Report and Recommendation.5 For the reasons that follow, the
Petition is DISMISSED WITH PREJUDICE.
BACKGROUND
Petitioner David Peek is currently incarcerated in the B.B. “Sixty” Rayburn
Correctional Center in Angie, Louisiana.6 On February 7, 2017, Petitioner pled guilty to
one count of forcible rape of a victim under age thirteen, one count of aggravated incest
with a victim under age thirteen, and twenty-seven counts of possession of pornography
R. Doc. 4.
R. Doc. 13.
3 R. Doc. 15.
4 Id. at 8.
5 R. Doc. 18.
6 R. Doc. 4.
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involving juveniles under age thirteen.7 That day, Petitioner was sentenced to serve
concurrent sentences of 35 years in prison for forcible rape with two years to be served
without benefit of parole, probation, or suspension of sentence, 25 years in prison for
aggravated incest without benefit of parole, probation, or suspension of sentence, and 20
years in prison on each count of possession of pornography without benefit of parole,
probation, or suspension of sentence.8 Petitioner did not file a direct appeal or seek
reconsideration of the sentence, so his conviction became final thirty days later, on March
9, 2017.9
On February 1, 2018, Petitioner filed the instant Petition for Writ of Habeas
Corpus, presenting two grounds for relief: (1) the search and seizure at the time of his
arrest was conducted without a valid search warrant affidavit10 and (2) the search and
seizure of his cell phone was illegal.11 Petitioner indicated that these two claims were not
exhausted and that he was “currently preparing an application for post-conviction
relief.”12
Concurrently with the habeas petition, Petitioner filed a Motion to Stay, asking this
Court to stay the federal habeas proceeding while he exhausted his state court remedies.13
The Court denied the Motion to Stay on February 9, 2018 because, at that time, Petitioner
had not filed an application for post-conviction relief in state court.14 The Court noted
State Rec., Vol. 1 of 1, Indictment, 8/25/15; Indictment, handwritten amendment dated 12/12/16; Plea
Minutes, 2/7/17; Plea of Guilty and Waiver of Rights, 2/7/17.
8 State Rec., Vol. 1 of 1, Plea Minutes, 2/7/17.
9 See La. Code Crim. P. art. 914; Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (under federal
habeas law, a conviction is final when the state defendant does not timely proceed to the next available step
in the state appeal process); see Cousin v. Lensing, 310 F.3d 843, 845 (5th Cir. 2002) (petitioner’s guilty
pleas became final at the end of the period for filing a notice of appeal under La. Code Crim. P. art. 914).
10 R. Doc. 4 at 5.
11 R. Doc. 4 at 7.
12 R. Doc. 4 at 6-7.
13 R. Doc. 5.
14 R. Doc. 7.
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that, at the time the federal petition was submitted, Petitioner had over one month of the
federal limitations period remaining, which he could interrupt with a properly filed state
application for post-conviction relief.15
On March 22, the State filed a response to the Petition for Writ of Habeas Corpus,
asserting that the Petition should be dismissed without prejudice because Petitioner’s
claims are unexhausted.16 The Magistrate Judge recommended the Petition be dismissed
with prejudice because Petitioner’s unexhausted claims do not entitle him to federal
habeas corpus relief on the merits.17 Petitioner timely objected to the magistrate judge’s
Report and Recommendation.18
LEGAL STANDARD
In reviewing the magistrate judge’s Report and Recommendation, the Court must
conduct a de novo review of any of the magistrate judge’s conclusions to which a party
has specifically objected.19 Petitioner objects to the Magistrate’s recommendation that the
Petition be dismissed because he filed a state application for post-conviction relief on May
5, 201820 and because he received ineffective assistance of trial counsel.21 Petitioner asks
that his Petition be heard, dismissed without prejudice, or stayed to allow him to exhaust
his state court remedies.
R. Doc. 7 at 2.
R. Doc. 13 at 1
17 R. Doc. 15.
18 R. Doc. 16.
19 See 28 U.S.C. § 636(b)(1) (“[A] judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which an objection is made.”).
20 R. Doc. 16 at 3-5, 15.
21 R. Doc. 16 at 7. To the extent Petitioner raises a new claim of ineffective assistance of counsel, that claim
is not properly before this Court. See Finley v. Johnson, 243 F.3d 215, 219 n. 3 (5th Cir. 2001) (“We have
held that issues raised for the first time in objections to the report of a magistrate judge are not properly
before the district judge.”) (citing United States v. Armstrong, 951 F.2d 626, 630 (5th Cir.1992)); Patterson
v. Cain, No. 10-4587, at *5, 2012 WL 1933748 (E.D. La. May 29, 2012) (because Petitioner asserted this
claim in his objection to the magistrate’s report and recommendation, it has not been properly raised and
is not properly before the district court).
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It is well settled that a petitioner must have exhausted state court remedies before
seeking habeas corpus review in the federal courts.22 If a federal habeas petition presents
claims that have not been exhausted, the court should dismiss the petition.23 When faced
with a “mixed petition” 24 containing both exhausted and unexhausted claims, a court may
elect to stay the proceedings25 or dismiss the petition without prejudice to require
complete exhaustion.26 Alternatively, the Court may deny an unexhausted or mixed
petition on the merits, notwithstanding the Petitioner’s failure to exhaust the remedies
available in state court.27 When reviewing an unexhausted claim on the merits, AEDPA’s
deferential standard of review does not apply. Instead, the federal courts review
unexhausted claims under a de novo standard of review.28
LAW AND ANALYSIS
Petitioner contends that evidence in his criminal case was located following an
illegal search and seizure, in violation of the Fourth Amendment.29 The magistrate judge
recommended that these claims lack merit because this Court’s review of a Fourth
Amendment claim is limited by the Supreme Court’s holding in Stone v. Powell.30 In
Stone, the Supreme Court held, “where the State has provided an opportunity for full and
fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal
Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).
F.3d 384, 387 (5th Cir. 1998) (citing 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy,
455 U.S. 509, 519-20 (1982)).
24 This petition is not a “mixed petition” containing both exhausted and unexhausted claims. None of the
claims in the Petition have been exhausted.
25 Rhines v. Weber, 544 U.S. 269, 278 (2005); Pliler v. Ford, 542 U.S. 225, 227 (2004).
26 Whitehead, 157 F.3d at 387 (citing 28 U.S.C. § 2254(b)(1)(A); Rose, 455 U.S. at 519-20).
27 28 U.S.C. § 2254(b)(2).
28 Cullen v. Pinholster, 563 U.S. 170, 185-86 (2011); Carty v. Thaler, 583 F.3d 244, 253 (5th Cir. 2009).
29 In objection to the magistrate judge’s report and recommendation, Petitioner argues his trial counsel was
ineffective in failing to “perfect and file the violation of the Fourth Amendment claim.” Petitioner represents
that he included this claim in his state application for post-conviction relief. To the extent Petitioner raises
a new claim, that claim is not properly before this Court. See sources cited supra n. 21.
30 428 U.S. 465 (1976).
22
23 Whitehead v. Johnson, 157
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habeas corpus relief on the ground that evidence obtained in an unconstitutional search
or seizure was introduced at his trial.”31 The “full and fair” hearing contemplated by Stone
refers to thoughtful consideration by the factfinder and at least the availability of
meaningful appellate review by a higher state court.32 The Fifth Circuit has held that “the
existence of state processes allowing an opportunity for full and fair litigation of fourth
amendment claims, rather than a defendant’s use of those processes[,]” is what bars
federal habeas review of Fourth Amendment claims under Stone.33
Petitioner was afforded an opportunity for full and fair litigation of his Fourth
Amendment claims in state court. Before Petitioner entered a guilty plea, his trial counsel
filed a Motion to Suppress, based on a lack of probable cause in the sworn affidavit
included with the search warrant application.34 The state trial court denied the motion
after a full evidentiary hearing held December 6, 2016.35 Peek declined the opportunity
for full and fair litigation of his Fourth Amendment claim because he failed to seek pretrial
supervisory or appellate review of that ruling. Petitioner’s failure to take advantage of a
further opportunity for full and fair review does not overcome the Stone bar to federal
review of his Fourth Amendment claim. On de novo review, the Court concludes
Petitioner is not entitled to relief on the merits of his claims. As a result, there is no reason
to stay this case or dismiss without prejudice to allow Petitioner to return to state court
to exhaust these claims.36
Id. at 494 (footnotes omitted).
Davis v. Blackburn, 803 F.2d 807, 808 (5th Cir. 1986); O’Berry v. Wainwright, 546 F.2d 1204, 1213 (5th
Cir. 1977).
33 Williams v. Brown, 609 F.2d 216, 220 (5th Cir. 1980); see also Janecka v. Cockrell, 301 F.3d 316, 320
(5th Cir. 2002).
34 State Rec., Vol. 1 of 1, Motion to Suppress filed 4/28/16.
35 State Rec., Vol. 1 of 1, Minute Entry, 12/6/16.
36 If the Court dismissed this action without prejudice, any subsequent federal habeas review would be time
barred. Petitioner’s conviction and sentence became final on March 9, 2019. Petitioner did not file a state
31
32
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CONCLUSION
For the reasons above, the Court APPROVES the Magistrate Judge’s Report and
Recommendations and ADOPTS it as its opinion in this matter.37
IT IS ORDERED that Petitioner David Peek’s 28 U.S.C. § 2254 Petition for Writ
of Habeas Corpus is hereby DISMISSED WITH PREJUDICE.38
New Orleans, Louisiana, this 10th day of June, 2019.
_____________ ________ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
court application for post conviction relief until May 5, 2018. The AEDPA one-year statute of limitations is
not tolled during the pendency of a federal habeas application. Rhines, 544 U.S. at 275.
37 R. Doc. 15.
38 R. Doc. 1.
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