Chittenden v. 21st Judicial District Court et al

Filing 10

ORDER: As to 1 Petition for Writ of Habeas Corpus filed by Robert M. Chittenden, 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 do so will result in issuance of a m agistrate judges report recommending the dismissal of the petition in its entirety as a mixed petition, which dismissal may adversely impact the petitioners ability to timely file another § 2254 petition. Motions shall be filed by 8/15/2011. Signed by Magistrate Judge Stephen C. Riedlinger on 8/1/2011. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ROBERT M. CHITTENDEN (#527297)
VERSUS

CIVIL ACTION

21ST JUDICIAL DISTRICT COURT, ET AL

NUMBER 11-395-FJP-SCR

ORDER
Petitioner Robert M. Chittenden filed a Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State
Custody.
Petitioner pled guilty to one count aggravated incest in the
Twenty-first Judicial District Court for the Parish of Livingston,
Louisiana on August 20, 2007.

Petitioner was sentenced to a 20

year term of imprisonment at hard labor.
Petitioner appealed asserting a single ground for relief: the
trial court imposed an excessive sentence.
The First Circuit Court of Appeal affirmed the petitioner’s
conviction

and

sentence.

State

of

Louisiana

v.

Robert

M.

Chittenden, 2008-0418 (La. App. 1st Cir. 9/12/08), 992 So.2d 593
(Table), 2008 WL 4191010.

Petitioner sought supervisory review by

the Louisiana Supreme Court, which denied review on September 18,
2009.

State ex rel. Robert M. Chittenden v. State of Louisiana, 17

So.3d 390, 2008-2680 (La. 9/18/09).
Petitioner filed an application for post-conviction relief

(PCRA) on October 14, 2009.

Petitioner asserted the following

grounds for relief:
(1)

his guilty plea was not knowing and voluntary;

(2)

he was denied a right of appeal; and,

(3)

he was denied effective assistance of counsel when:
(a)

counsel coerced
guilty plea;

him

into

entering

a

(b)

counsel misled him into believing he
would not receive a maximum sentence;

(c)

counsel failed to object to the excessive
sentence.

The trial court denied the PCRA on March 11, 2010.
Petitioner sought review by the Louisiana First Circuit Court
of Appeal.

The Louisiana First Circuit Court of Appeal denied

review on the showing made.
the

supplementation

of

Petitioner was placed on notice that

his

writ

application

would

not

be

considered. Petitioner was advised that in the event he elected to
file a new application, it must be filed on or before April 25,
2011.

State of Louisiana v. Robert M. Chittenden, 2010-2188 (La.

App. 1st Cir. 2/28/11).

Petitioner did not re-file and did not

seek review by the Louisiana Supreme Court.
In this court, the petitioner raised two grounds for relief:
(1) he received an excessive sentence; and (2) he was denied
effective assistance of counsel when counsel failed to object to
the excessive sentence.
2

The State filed a Motion to Dismiss on grounds that the
petitioner’s

ineffective

assistance

of

counsel

claim

is

unexhausted.1 Petitioner opposed the motion2 arguing that there are
genuine issues of material fact as to whether the sentence is
excessive and whether,

when he enter the guilty plea, he had a

justifiable belief that he would earn good time credits and be
parole eligible. Petitioner did not address his failure to exhaust
available state court remedies regarding his ineffective assistance
of counsel claim and failed to offer any evidence to support
exhaustion of this claim.
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.

Duncan v. Walker, 533 U.S. 167, 178-79,

1

Record document number 8.

2

Record document number 9.

3

121 S.Ct. 2120(2001).

“The exhaustion requirement is satisfied

when the substance of the federal habeas claim has been fairly
presented to the highest state court.”
F.3d 384, 387 (5th Cir. 1998).

Whitehead v. Johnson, 157

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).
A review of the State court record showed that the petitioner
failed to exhaust his second ground for relief - ineffective
assistance of counsel.
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

4

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.

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.
magistrate

Failure to do so will result in issuance of a
judge’s

report

recommending

the

dismissal

of

the

petition in its entirety as a mixed petition, which dismissal may
adversely impact the petitioner’s ability to timely file another §
2254 petition.
Baton Rouge, Louisiana, August 1, 2011.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

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