Carter v. Calcasieu Correctional Center

Filing 10

REPORT AND RECOMMENDATIONS recommending that the 1 Petition for Writ of Habeas Corpus filed by Darrel Tremaine Carter be DENIED AND DISMISSED WITHOUT PREJUDICE. IT IS FURTHER RECOMMENDED that the pending 5 MOTION for Production of Public Records filed by Darrel Tremaine Carter be DISMISSED AS MOOT. Objections to R&R due by 1/21/2014. Signed by Magistrate Judge Kathleen Kay on January 2, 2014. (crt,Benoit, T)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
DARREL TREMAINE CARTER

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CIVIL ACTION NO: 2:13-cv-2501

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SECTION P

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JUDGE TRIMBLE

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MAGISTRATE JUDGE KAY

VERSUS
WARDEN CALCASIEU
CORRECTIONAL CENTER, ET AL

REPORT AND RECOMMENDATION
Pro se petitioner Darrel Tremaine Carter filed the instant petition for writ of habeas
corpus on August 16, 2013. Petitioner is an inmate in the custody of Louisiana’s Department of
Public Safety and Corrections.

He is incarcerated at Calcasieu Correctional Center, Lake

Charles, Louisiana. Petitioner seeks relief pursuant to 28 U.S.C. §2254, related to his 2011
conviction and sentence imposed by the Fourteenth Judicial District Court, State of Louisiana,
Parish of Calcasieu.
This matter was 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. For the
following reasons it is recommended that the petition be DISMISSED WITHOUT
PREJUDICE because petitioner has failed to exhaust his state court remedies.
I. Background
On September 9, 2009, and on September 15, 2009. petitioner was arrested for Driving
While Intoxicated (“DWI”). Doc. 7, att. 1, p. 6. On May 3, 2011, petitioner entered a plea of no
contest to two counts of DWI third offense. Doc. 7. att. 1, p. 2. He was sentenced to serve five
years in the custody of the Louisiana Department of Corrections with all but one year suspended

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on each count, to run concurrent. Id. He was additionally sentenced to serve five years on
supervised probation. Id.
In January 2013, petitioner was arrested for another DWI and use of a controlled
substance. Doc. 7, att. 1, p. 8. On May 22, 2013, petitioner was brought back to court and
admitted to violating the terms of his supervised probation. Doc. 7, att. 1, pp. 4-14. He was
ordered to serve the four year balance on his sentence, to run concurrent with each other but
consecutive to any other time that he served in the past. Doc. 7, att. 1, pp. 12-13.
Petitioner claims that he appealed the May 22, 2013, sentence and conviction on direct
appeal to the Third Circuit Court of Appeal and via post-conviction relief filed in the Fourteenth
Judicial District Court. Doc. 1, pp. 2-3.
Petitioner filed the instant petition on August 16, 2013. He argues that the probation
period from his 2007 conviction was excessive, that he has been denied good time credit and
credit for street time, and that the judge imposed a four year sentence rather than the five year
sentence as reflected in the DOC prison records. Doc. 1, p. 4.
II. Law and Analysis
Federal law is clear – a state prisoner must exhaust available state court remedies as to
each and every ground upon which he claims entitlement to habeas relief whether he seeks relief
pursuant to 28 U.S.C. § 2241 or § 2254. Dickerson v. Louisiana, 816 F.2d 220, 225 (5th
Cir.1987). Generally, the exhaustion requirement is satisfied only when the grounds urged in a
federal petition were fairly presented to the state’s highest court in a procedurally proper manner.
Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). A total exhaustion rule promotes comity and
such a rule does not unreasonably impair a prisoner’s right to relief. Dickerson, 816 F.2d at 225.
Further, as a matter of comity, the state courts must be given a fair opportunity to hear and

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consider the claims raised by an applicant before those claims are heard in federal court. Picard
v. Connor, 404 U.S. 270, 275 (1971).
A federal district court may notice sua sponte the lack of exhaustion. Shute v. State, 117
F.3d 233, 237 (5th Cir.1997). A federal habeas petition that contains unexhausted claims must
be dismissed in its entirety. Thomas v. Collins, 919 F.2d 333, 334 (5th Cir.1990).
Since petitioner seeks relief pursuant to 28 U.S.C. § 2241 and since habeas corpus is the
appropriate remedy, he must comply with the statutory and jurisprudential requirements
concerning exhaustion of available state court remedies. Although petitioner alleges that he
appealed his sentence and sought post-conviction relief, a review of the presumptively reliable
published jurisprudence of the State of Louisiana establishes that petitioner has not litigated any
claims before the Louisiana Supreme Court. The available evidence establishes beyond any
doubt that petitioner has not fully exhausted the claims he brings in this petition.
Therefore,
IT IS RECOMMENDED that this petition for habeas corpus be DENIED AND
DISMISSED WITHOUT PREJUDICE since it plainly appears that the petitioner has failed to
exhaust all available state court remedies.
IT IS FURTHER RECOMMENDED that the pending Motion for Production of Public
Records [doc. 5] be DISMISSED AS MOOT.
Under the provisions of 28 U.S.C. Section 636(b)(1)(C) and Rule 72(b), parties aggrieved
by this recommendation have fourteen (14) days from service of this report and recommendation
to file specific, written objections with the Clerk of Court. A party may respond to another
party’s objections within fourteen (14) days after being served with a copy of any objections or
response to the District judge at the time of filing.

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Failure to file written objections to the proposed factual findings and/or the proposed
legal conclusions reflected in this Report and Recommendation within fourteen (14) days
following the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b), shall
bar an aggrieved party from attacking either the factual findings or the legal conclusions
accepted by the District Court, except upon grounds of plain error. See Douglass v. United
Services Automobile Association, 79 F.3d 1415 (5th Cir. 1996).
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States
District Courts, this court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant. Unless a Circuit Justice or District Judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals. Within fourteen (14) days from
service of this Report and Recommendation, the parties may file a memorandum setting forth
arguments on whether a certificate of appealability should issue. See 28 U.S.C. §2253(c)(2). A
courtesy copy of the memorandum shall be provided to the District Judge at the time of filing.
THUS DONE this 2nd day of January, 2014.

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