Folse v. Kent et al

Filing 32

RULING AND ORDER Adopting 30 Report and Recommendation of the U.S. Magistrate Judge. Petitioner's application for habeas corpus relief is DENIED, and the proceeding is DISMISSED WITH PREJUDICE. If Petitioner seeks to pursue an appeal in this case, a certificate of appealability shall be DENIED. A separate judgment will be issued. Signed by Judge Brian A. Jackson on 6/28/2021. (EDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DWAYNE FOLSE CIVIL ACTION

VERSUS
JASON KENT NO. 18-00121-BAJ-SDJ

RULING AND ORDER
Before the Court is Petitioners application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The Magistrate Judge has issued a Report and
Recommendation (Doc. 30), recommending that the Court deny petitioner's
application. The Magistrate Judge further recommended that the Court deny
Petitioner a certificate ofappealability if one is sought.
The Magistrate Judge found that Petitioner s claims that the prosecution failed
to produce exculpatory evidence, that he received ineffective assistance of counsel,

and that the prosecution engaged in deliberate perjury, are procedurally defaulted,
and therefore that the Court is barred from undertaking review. (Doc. 30, p. 7-10).

Further, the Magistrate Judge found that Petitioner s claim that he was improperly
sentenced as a habitual offender was without merit, in light of Jackson v. Virginia,

99 S. Ct 2781, 2789 (1979). (Doc 30, p. 12). Finally, the Magistrate Judge found that
Petitioner's federal claim that his sentence was excessive was not properly presented

to the Louisiana First Circuit Court of Appeal, therefore the claim is technically
exhausted and procedurally barred. (Doc. 30, p. 13). While Petitioner filed an

opposition to the Recommendation, (Doc. 31), he failed to submit any evidence to

counter the findings of the Magistrate Judge.
Having carefully considered the underlying Petition and related filings, the
Court APPROVES the Magistrate Judge's Report and Recommendation, and
ADOPTS it as the Court's opinion herein.
Accordingly,
IT IS ORDERED that Petitioner's application for habeas corpus relief is

DENIED, and the proceeding is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that, if Petitioner seeks to pursue an appeal in
this case, a certificate ofappealability shall be DENIED.
A separate judgment will be issued.

Baton Rouge, Louisiana, this ^"° day of June, 2021

aJUDGE BRIAN ^. JACtKSON

UNITED STATE^MSTRICT COURT
MIDDLE DISTRICT OF LOUISIANA