Mitchell v. Winn Correctional Center

Filing 8

ORDER re 6 Sec P - Order; the clerk of court is directed to mail a copy of this order, via first class mail, to the District Attorney, Third JDC, Lincoln Parish LA; thereafter, the District Attorney is REQUESTED to provide the following WITHIN 60 DAYS OF THIS DATE (documents listed herein) Signed by Magistrate Judge James D Kirk on 10/26/09. (crt,Davis, C) (Additional attachment(s) added on 10/26/2009: # 1 mailing label to DA 3rd JDC) (Davis, C).

RECEIVED
N Al EXANDRI~, LA

OCT 2 6 ZQO9
TON~7~IVOQCLERK WESTERN DI~ICTOF LOUISIANA

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION

ROGER R. MITCHELL LA. DOC #484484 VS.

CIVIL ACTION NO. 09-0651 SECTION P JUDGE DRELL

WARDEN WILKINSON

MAGISTRATE JUDGE KIRK ORDER TO PROVIDE DOCUI'IENTS

Pro se petitioner Roger R. Mitchell, proceeding in forma pauperis, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2254 on April 15, 2009. Petitioner is an inmate in the custody of Louisiana's Department of Public Safety and corrections. He is incarcerated at the Winn corrections Center, Winnfield, Louisiana. Petitioner attacks his 2004 convictions for attempted aggravated rape and the sentences imposed by the Third Judicial District court, Lincoln Parish. This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. §636 and the standing orders of the court. Statement of the Case

Petitioner was indicted and charged with two counts of aggravated rape by the Lincoln Parish Grand Jury. On May 4, 2004 he pled guilty to two counts of attempted aggravated rape and he was sentenced to serve consecutive 15 year sentences. He did not appeal his convictions or sentences.

On some unspecified date he filed an application for postconviction relief in the Third Judicial District Court.' He raised a single claim for relief counsel.
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ineffective assistance of

[rec. doc. 3, ¶7] The pleadings and exhibits filed thus

far do not establish how this application was resolved or whether petitioner sought further review in the Court of Appeals or Louisiana Supreme Court. Thereafter petitioner apparently sought review of his sentences by filing a motion to vacate. On April 3, 2009 the Louisiana Supreme Court denied writs seeking review of the Second Circuit's ruling under Docket No. 43,666--KH. State of Louisiana ex rel. Roger R. Mitchell v. State of Louisiana, 4/3/2009), 6 So.3d 766.2 2008--1584 (La.

Petitioner filed the instant habeas petition on April 15, 2009 raising the following claims sentence; counsel. (2) improper indictment;
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(1) excessiveness of (3) ineffective assistance of

[rec. doc. 1] He subsequently filed an amended petition

on the form provided to pro se prisoners. In this amended pleading he argued a single claim for relief assistance of counsel. [rec. doc. 3, ¶5]
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ineffective

Petitioner claims that he filed his application for post-conviction relief on April 16, 2004 [rec. doc. 3, ¶7], however, it is unlikely that petitioner would file an application for post-conviction relief BEFORE he was convicted.
2

In his original pleading petitioner suggested that he presented the

issue of excessiveness of sentence to the Court of Appeal and the Supreme Court. [rec. doc. 1]

2

On August 20, 2009 the undersigned ordered petitioner to amend his petition to provide the following information: copy of the PLEA AGREEMENT and TRANSCRIPT OF THE PLEA AND
SENTENCING; (2) DATED copies of all post-conviction motions,

(1) A

applications, or petitions filed in the Third Judicial District Court, the Second Circuit Court of Appeals, and the Louisiana Supreme Court; and, orders, judgments, (3) Copies of all post-conviction rulings, and/or reasons for judgment of the Third

Judicial District Court, the Second Circuit Court of Appeals, and the Supreme Court. In the alternative, petitioner was directed to provide a "detailed description of the claims raised in each proceeding and the dates each proceeding was filed." [rec. doc. 6] On September 10, 2009 petitioner filed an "Amended Petition" however, he claimed to be unable to provide the documents or information requested. More information is needed to allow the Court to determine whether this petition should survive an initial review. Therefore,
The Clerk of Court is directed to mail a copy of this order, via First Class Mail, to the District Attorney, Third Judicial

District Court, Lincoln Parish Louisiana.

Thereafter, the District Attorney is REQUESTED to provide the following WITHIN SIXTY (60) DAYS OF THIS DATE: 3

(1) A copy of the PLEA AGREEMENT and TRANSCRIPT OF THE PLEA
AND SENTENCING; (2) DATED copies of all post-conviction motions,

applications, or petitions filed in the Third Judicial District Court, the Second Circuit Court of Appeals, and the Louisiana Supreme Court; and, (3) Copies of all post-conviction rulings, orders, judgments, and/or reasons for judgment of the Third Judicial District Court, the Second Circuit Court of Appeals, and the Supreme Court. It is further REQUESTED that these Documents be indexed and identified and that copies of the documents be forwarded to the petitioner.
THE DISTRICT ATTORNEY IS HEREBY ADVISED
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THIS MATTER

REMAINS ON INITIAL REVIEW. THE DOCUMENTS ARE REQUESTED IN ORDER TO ENABLE THE UNDERSIGNED TO CONCLUDE AN INITIAL REVIEW AND THEREBY TO DETERMINE WHETHER PETITIONER' S HABEAS CLAIMS ARE TIMELY, WHETHER AVAILABLE STATE COURT REMEDIES WERE EXHAUSTED, AND/OR WHETHER ANY OF PETITIONER' S CLAIMS ARE SUBJECT TO DISMISSAL UNDER THE PROCEDURAL DEFAULT DOCTRINE.

4

JAMES D. KIRK United States Magistrate Judge