Jackson v. Cooper et al

Filing 3

ORDER: petitioner shall have 14 days from the date of this order to file a motion to dismiss his second ground for relief.. Signed by Magistrate Judge Stephen C. Riedlinger on 05/13/11. (PAH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

SEDRIC L. JACKSON (#528515)
VERSUS

CIVIL ACTION

LYNN COOPER, ET AL

NUMBER 11-191-BAJ-SCR
ORDER

Petitioner Sedric L. Jackson filed a Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus By a Person in State Custody.
Petitioner challenged the constitutionality of his 2007 state court
convictions and sentences for possession with intent to distribute
cocaine in violation of LSA-R.S. 40:967(A)(1) and possession of
over 200 grams, but less than 400 grams of cocaine in violation of
LSA-R.S. 40:967(F)(1)(b).
Petitioner raised two grounds for relief: (1) his Fourth
Amendment rights were violated during the warrantless search of his
residence; and, (2) he was denied effective assistance of counsel
in violation of his Sixth Amendment rights.
Petitioner asserted in his federal habeas corpus application
that his second ground for relief was not presented to the state
court in his direct appeal, and he has not filed an application for

post-conviction relief.1

Petitioner contends that he should be

exempted from the exhaustion requirement because exhaustion would
be futile. Specifically, the petitioner maintains that it would be
futile to exhaust his Sixth Amendment ineffective assistance of
counsel claim because it is premised on the merit of his Fourth
Amendment claim, which was rejected by the state courts.
One of the threshold requirements for a § 2254 petition is
that, subject to certain exceptions, the petitioner must have first
exhausted in state court all of his claims before presenting them
to the district court. 28 U.S.C. § 2254(b)(1) (“An application for
a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted unless it
appears that ... the applicant has exhausted the remedies available
in the courts of the State....”) The principles of finality,
comity, and federalism require a federal habeas petitioner to first
provide the state court a full and fair opportunity to consider
federal law challenges.
121 S.Ct. 2120(2001).

Duncan v. Walker, 533 U.S. 167, 178-79,
“The exhaustion requirement is satisfied

when the substance of the federal habeas claim has been fairly
presented to the highest state court.”
1

Whitehead v. Johnson, 157

According to the petitioner, the Louisiana Supreme Court
denied his writ application on March 26, 2010. He then had 90 days
to seek review by the U.S. Supreme Court. His § 2254 petition was
filed on March 25, 2011.
Based on the dates alleged by the
petitioner, his petition is timely under 28 U.S.C. § 2254(d)(1)(A).
2

F.3d 384, 387 (5th Cir. 1998).

The Supreme Court has interpreted

§ 2254(b)(1) to require dismissal of a habeas petition if it
contained even a single unexhausted claim - the “total exhaustion”
requirement.

Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198

(1982).
In Fisher v. Texas, 169 F.3d 295 (5th Cir. 1999), the Fifth
Circuit recognized that “the exhaustion requirement may be excused
when seeking a remedy in state court would be futile.”

Id. at 303.

The futility exception is quite limited, applying only “when ...
the highest state court has recently decided the

same

legal

question adversely to the petitioner.” Id. (emphasis added). But,
“the likelihood of failure of a claim in state court is no excuse
for not presenting it there.”

Beazley v. Johnson, 242 F.3d 248,

269 (5th Cir.) (emphasis in original) citing Engle v. Isaac, 456
U.S. 107, 130, 102 S.Ct. 1558(1982) (“If a defendant perceives a
constitutional claim and believes it may find favor in the federal
courts, he may not bypass the state courts simply because he thinks
they will be unsympathetic to the claim.

Even a state court that

has previously rejected a constitutional argument may decide, upon
reflection,

that

the

contention

added)), cert. denied sub nom.

is

valid.”

(second

emphasis

Beazley v. Cockrell, 534 U.S. 945,

122 S.Ct. 329 (2001).
Petitioner’s Sixth Amendment ineffective assistance of counsel
3

claim has two components: (a) trial counsel’s inadequate pretrial
preparation

and

(b)

Amendment claim.2
of

the

trial

counsel’s

handling

of

the

Fourth

The state court has not addressed either aspect

petitioner’s

ineffective

assistance

of

counsel

claim.

Although the state court may, when considering the petitioner’s
ineffective assistance of counsel claim, find no Sixth Amendment
violation because the warrantless entry into the residence did not
violate his Fourth Amendment rights, it does not follow that it
must

or

will

reject

Amendment claim.
more

than

just

both

aspects

of

the

petitioner’s

Sixth

To excuse exhaustion, the petitioner must show
a

likelihood

of

failure.

Consequently,

the

petitioner has not shown, for his ineffective assistance of counsel
claim, that presentation of it to the state court would be futile.
Therefore;
IT IS ORDERED that the petitioner shall have 14 days from the
date of this order to file a motion to dismiss his second ground
for relief.
Failure to comply with this order will result in the dismissal
of

the

petition

in

its

entirety

as

a

mixed

petition,

which

dismissal may adversely impact the petitioner’s ability to timely

2

Record document number 1-1, memorandum in support, pp. 30-

34.
4

file another § 2254 petition.3
Baton Rouge, Louisiana, May 13, 2011.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

3

As provided by § 2244(d)((2), when calculating the one year
period of limitations established by § 2244(d)(1), the time during
which a properly filed application for state post-conviction relief
or other collateral review with respect to the pertinent judgment
or claim is pending shall not be counted. As noted above, the
petitioner has not filed a state court post-conviction relief
application.
Although the Antiterrorism and Effective Death Penalty Act’s
(AEDPA) time limit does not run while a properly filed application
for state post-conviction relief is pending, 28 U.S.C. §
2244(d)((2), it does run while the federal court considers an
application for habeas review. Duncan v. Walker, 533 U.S. 167,
181-82, 121 S.Ct. 2120(2001); Hayes v. Wilson, 268 Fed. Appx. 344
(5th Cir. 2008).
Because the pendency of the petitioner’s § 2254 petition does
not toll the AEDPA time limit, dismissal of the petition in its
entirety may bar access to federal court following completion of
state post-conviction proceedings if his next § 2254 petition is
untimely.
5