Bess v. Louisiana State Penitentary

Filing 29

MEMORANDUM ORDER directing clerk to prepare summons and serve by certified mail a copy of the petition and this order upon specified parties. Signed by Magistrate Judge Karen L Hayes on 5/3/13. (crt,DickersonSld, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
LYNN BESS, III
LA. DOC #318225
VS.

CIVIL ACTION NO. 3:12-cv-2039
SECTION P
JUDGE ROBERT G. JAMES

WARDEN BURL CAIN

MAGISTRATE JUDGE KAREN L. HAYES
MEMORANDUM ORDER

On July 30, 2012, Lynn Bess, III, a prisoner in the custody of Louisiana’s Department of
Corrections, filed a pleading which was construed as a deficient petition for writ of habeas
corpus pursuant to 28 U.S.C. §2254. [Doc. 1] He was notified of the deficiency and on October
14, 2012, he cured the deficiency and filed a petition and accompanying memorandum. [Doc. 9]
Thereafter he filed a motion to amend and an amended petition asserting different claims. [Doc.
24] Petitioner attacks his 2010 conviction for car-jacking, his subsequent adjudication as an
habitual offender, and the life sentence imposed thereafter. 1 This matter has been referred to the
undersigned for review, report, and recommendation in accordance with the provisions of 28
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Petitioner filed a series of motions and related pleadings after his original filing. On
September 6, 2012, he moved for stay and abeyance of his habeas petition [Doc. 4] On the same
date, that motion was denied. [Doc. 5] His September 24, 2012, Motion for Reconsideration
[Doc. 6], was denied on September 26, 2012. [Doc. 8] On October 5, 2012, he appealed these
orders to the District Judge [Doc. 14] and on November 5, 2012, the District Judge denied the
appeal and affirmed the order denying stay and abeyance. [Doc. 17] On November 26, 2012,
plaintiff filed a Notice of Appeal [Doc. 19] and a Motion for Certificate of Appealability (COA).
[Doc. 21] On November 28, the COA was denied by the District Judge [Doc. 22] and petitioner’s
appeal was lodged in the Fifth Circuit Court of Appeals under Docket Number 12-31208.
Petitioner then requested permission from the court to file an amended petition. [Doc. 24] On
April 4, 2013, the Fifth Circuit dismissed his appeal for lack of jurisdiction. Lynn Bess, III v.
Burl Cain, Warden, No. 12-31208. [Doc. 28]

U.S.C. §636 and the standing orders of the Court.
Background
Petitioner was found guilty as charged of car-jacking in July, 2009. He was subsequently
adjudicated a fourth felony offender and sentenced to serve life without parole. He appealed his
conviction to the Second Circuit Court of Appeals arguing (1) sufficiency of the evidence and (2)
erroneous denial of a Batson challenge based on the State’s discriminatory use of peremptory
challenges. On August 11, 2010, his conviction was affirmed. State of Louisiana v. Lynn Bess,
III, 45,358 (La. App. 2 Cir. 8/11/2010), 47 So.2d 524, rehearing denied September 16, 2010. His
application for writs, filed on August 23, 2010, was denied by the Louisiana Supreme Court on
February 25, 2011. State of Louisiana v. Lynn Bess, III, 2010-2368 (La. 2/25/2011), 58 So.2d
456. His motion for reconsideration was denied on April 8, 2011. State of Louisiana v. Lynn
Bess, III, 2010-2368 (La. 4/8/2011), 61 So.2d 673.
Petitioner filed a pro se application for post-conviction relief on February 24, 2012. He
argued four claims for relief: (1) Petitioner’s right to confront witnesses and his right to due
process were violated when the court relied upon the report of the sanity commission to
determine petitioner’s capacity to stand trial; (2) the trial court failed to arraign petitioner on the
habitual offender bill; (3) the trial court erred in accepting a computer printout into evidence to
establish his habitual offender status and appeal counsel was ineffective for failing to argue this
issue on appeal; and, (4) ineffective assistance of trial counsel. [Doc. 24-1, pp. 2-47] On March
7, 2012, the District Court denied relief. [Doc. 24-1, pp. 48-55]
Petitioner applied for writs to the Second Circuit Court of Appeals. [Doc. 24-2] On June
14, 2012, the Court of Appeals denied writs. [Doc. 24-3, pp. 1-3] On July 11, 2012, he applied
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for writs in the Louisiana Supreme Court. [Doc. 24-3, pp. 4-44] On October 26, 2012, the
Supreme Court denied writs without comment. [Doc. 24-3, pp. 45-46]
On July 30, 2012, petitioner filed a pro se hand-written pleading that was construed as a
deficient petition for habeas corpus. [Doc. 1] Petitioner was directed to amend his petition to
comply with local court rules [Doc. 3] and on October 4, 2012, he filed a conforming petition
raising the claims he raised on direct appeal, namely (1) insufficiency of the evidence and (2)
Batson violation with regard to the State’s use of peremptory challenges. [Doc. 9 and 9-1] On
January 3, 2013, he filed a motion to amend his petition to add as claims for relief the four claims
raised during his post-conviction litigation. [Doc. 24]
Order
Preliminary review of the pleadings and exhibits suggests that the petitions are timely
filed and that petitioner has exhausted available State court remedies. Therefore,
Petitioner’s Motion for Leave to Amend/Correct [Doc. 24] is GRANTED; and, in order
to determine an appropriate remedy,
THE CLERK IS DIRECTED to prepare summons and serve a copy of
1. The petitions for writ of habeas corpus and accompanying memoranda [Doc. 1, Doc. 9
AND Doc. 9-1, and Doc. 242] by CERTIFIED MAIL on:
(1) The Attorney General for the State of Louisiana, and,
(2) Warden Burl Cain
by REGULAR FIRST CLASS MAIL on:

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THE CLERK NEED NOT SERVE THE EXHIBITS [DOCS. 24-1, 24-2, AND 24-3
AS THOSE DOCUMENTS ARE AVAILABLE TO THE RESPONDENT VIA CM/ECF.
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(3) The District Attorney for the Fourth Judicial District Court, Ouachita, Parish,
Louisiana, where petitioner was convicted and sentenced;
IT IS ORDERED that respondent, through the District Attorney, file within forty (40)
days after the date of service of summons:
1.

An answer to the petition.

(a)

The answer shall state whether petitioner has exhausted state
remedies, including any post-conviction remedies available to him
under Louisiana law, by properly presenting to the Supreme Court of
Louisiana all issues raised in this petition. If respondent claims that
petitioner has failed to exhaust his state remedies, respondent shall
state whether petitioner has any available procedural vehicle by
which he may present his claims to the state courts, and if not,
respondent shall present applicable case law as to whether this court
should reach the merits of the claims. If respondent contends that
petitioner has procedurally defaulted on any ground presented in this
petition, respondent should raise the defense of procedural default.
Respondent shall also address whether the claims presented herein
are cognizable on federal habeas review, and if they are not
cognizable, respondent shall present applicable case law as to why the
claims are not properly before this court.
Respondent should also state whether petitioner demonstrates that
any of the claims presented herein have been adjudicated in state
court proceedings which resulted in: (1) a decision that was contrary
to, or involved an unreasonable application of, clearly established
Federal law as determined by the Supreme Court of the United States;
or (2) a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceedings. See, 28 U.S.C. § 2254(d) as amended by § 104(d) of the
AEDPA.
Respondent should also state whether petitioner has rebutted by clear
and convincing evidence any factual determination made by a state
court and which is presumed to be correct in this proceeding. See, 28
U.S.C. § 2254(e)(1), as amended by §104(e) of the AEDPA.

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(b)

In the event the State contends that it has been prejudiced in its ability to
respond by petitioner’s delay in filing or that the petition is a second or
successive petition under 28 U.S.C. § 2254, the State shall set forth such
contentions with particularity.

(c)

Respondent is further ordered to specifically address whether the
filing deadlines contained in 28 U.S.C. § 2244(d)(1), (as amended by
Section 101 of AEDPA), are applicable to this proceeding and bar
review of petitioner’s claims.

2.

A memorandum brief of law in support of all issues raised in the answer,
citing relevant Fifth Circuit authority and referring to the pertinent page
numbers in the state court record in support of the answer. A COPY OF
THE BRIEF FILED IN STATE COURT WILL NOT BE DEEMED
SUFFICIENT IN THIS PROCEEDING.

3.

A certified copy of the state court record, including transcripts of all
proceedings held in the state courts;

4.

A certified copy of all documents, including all briefs or memoranda of
any party, filed in connection with any appeal, application for postconviction relief, or writ application presented to any and all state, district
courts, appellate courts or the Louisiana Supreme Court; and

5.

Certified copies of, or citations to, all state court dispositions, including
the Louisiana Supreme Court decision pertaining to the conviction under
attack.

The pages of the records shall be arranged in chronological sequence, securely
bound together and numbered consecutively (handwritten numbers are acceptable). An
index describing each item of the records sent and showing each item’s page number shall
also be attached.
In the event the District Attorney is unable to produce any of the above documents, he
shall advise this court in writing why he is unable to produce them.
IT FURTHER IS ORDERED that petitioner is allowed twenty (20) days following the

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filing of each respondent’s memorandum in which to file any response he wishes to present to
this court.
After the record is complete and all legal delays have run, the court will determine the
necessity of an evidentiary hearing. If no hearing is necessary, a Report and Recommendation
will issue without further notice.
IT FURTHER IS ORDERED that, as a condition to their acceptance by the Clerk, all
future filings by petitioner or respondent shall include a certificate indicating that a copy thereof
has been furnished to the other parties.
In Chambers, Monroe, Louisiana, May 3, 2013.

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