Frazier v. Smith et al

Filing 4

ORDER: Within thirty (30) days of the date of this Order, the petitioner shall provide to the Court, in writing, any evidence within his possession or control that reflects that he has presented and/or exhausted the claim asserted in this proceeding before the Louisiana Supreme Court. The petitioner is advised that a failure to provide a response to this Order within the time allowed may result in a dismissal of this proceeding without further notice from the Court. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 02/25/2015. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MYRON LAMAR FRAZIER (#312773)

CIVIL ACTION

VERSUS
WARDEN JOHN SMITH

NO. 14-0787-SDD-RLB

ORDER
The pro se petitioner, an inmate confined at the Tensas Parish Detention Center,
Waterproof, Louisiana, brought this habeas corpus proceeding pursuant to 28 U.S.C. § 2254,
complaining that his constitutional rights have been violated in connection with his sentence as a
fourth felony offender under the Louisiana habitual offender statute, which sentence was
imposed in 2013 in the Nineteenth Judicial District Court for the Parish of East Baton Rouge,
State of Louisiana. The petitioner asserts that the sentence imposed is excessive.
Pursuant to 28 U.S.C. § 2254(b) and (c), a claimant seeking federal habeas corpus relief
is required to first exhaust his claims by presenting them for review before the courts of the state
in which he is confined. The exhaustion requirement is satisfied only when a petitioner’s claims
have been properly presented to the state’s highest court, in this case the Louisiana Supreme
Court, either on direct review or on post-conviction attack. Rose v. Lundy, 455 U.S. 509, 522
(1982); Bufalino v. Reno, 613 F.2d 568, 570 (5th Cir. 1980). The petitioner in this case has
provided competing assertions regarding the presentation of the instant claim before the state’s
highest court, see R. Doc. 1 at pp. 2 and 6. Accordingly, the Court is unable to determine
whether this claim has been exhausted. Further, whereas the Court has determined that the
petitioner has presented this claim before the intermediate Louisiana appellate court, which court

affirmed the petitioner’s sentence on September 24, 2014, see State v. Frazier, 2014 WL
4742544 (La. App. 1st Cir. Sept. 24, 2014), the Court has found no record, in the “presumptively
accurate published jurisprudence of the State of Louisiana,” that the petitioner has presented the
claim before the Louisiana Supreme Court. See Reed v. Keith, 2014 WL 940587, *1 at note 1
(W.D. La. Mar. 11, 2014). Accordingly,
IT IS ORDERED that, within thirty (30) days of the date of this Order, the petitioner
shall provide to the Court, in writing, any evidence within his possession or control that reflects
that he has presented and/or exhausted the claim asserted in this proceeding before the Louisiana
Supreme Court. The petitioner is advised that a failure to provide a response to this Order within
the time allowed may result in a dismissal of this proceeding without further notice from the
Court.
Signed in Baton Rouge, Louisiana, on February 25, 2015.

s

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE