Bess v. Louisiana State Penitentary

Filing 5

ORDER granting 4 Motion for Extension of Time to Amend 1 Petition for Writ of Habeas Corpus ; denying 4 Motion to Appoint Counsel ; denying 4 Motion to Stay. Petitioner is ordered to comply with the August 2, 2012 memorandum order and su bmit his properly executed habeas corpus petition on the form provided to him within thirty (30) days of this date; he is further ordered to submit the $5.00 filing fee or properly executed application to proceed in forma pauperis within 30 days. Petitioner should also provide a detailed memorandum to establish that he is entitled to the stay he requests. Signed by Magistrate Judge Karen L Hayes on 9/6/2012. (crt,Haik, K)

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

Pro se petitioner Lynn Bess, III, a prisoner in the custody of Louisiana’s Department of
Public Safety and Corrections, who is incarcerated at the Louisiana State Penitentiary, submitted
a hand-written document to the Clerk of Court which was dated June 26, 2012, mailed on July
25, 2012, and received and filed by the Clerk on July 30, 2012. This document asserted that
petitioner was “... not satisfied with the decision of the lower courts...”1 and therefore he
indicated a desire to “appeal the decision ... to this Hon. Western District Court.” He requested a
stay pending exhaustion of unspecified post-conviction claims, and complained that he was being
harassed by the prison’s inmate counsel, and that he was otherwise denied access to the prison’s
law library. [Doc. 1] Since the document, read liberally, complained of a state-court conviction, it
was construed as a petition for writ of habeas corpus filed pursuant to 28 U.S.C. §2254; and,
since the petitioner failed to submit his pleading on the form approved for such purposes and
mandated by Rule 3.2 of this District, and, since he failed to either pay the filing fee or submit

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Petitioner seeks review of decisions of the Fourth Judicial District Court, Ouachita
Parish, under Docket Number 07-F3173-1, the Louisiana Second Circuit Court of Appeals under
Docket Number 45,358-KA, and the Louisiana Supreme Court under Docket Number 2010-KO2368

the appropriate form seeking in forma pauperis status,2 he was directed by the undersigned on
August 2, 2012 to amend his pleadings to comply with Rule 3.2 on or before September 4, 2012.
[Doc. 3]
In another letter directed to the Clerk of Court dated August 20, 2012, which was mailed
on September 4, 2012, and received and filed on September 6, 2012 petitioner requested
“additional time to amend the pleadings” and also requested appointment of counsel. He re-urged
his request for a stay and his complaints concerning inmate counsel at the Louisiana State
Penitentiary. [Doc. 4]
Local Rule 3.2 of the Western District
Petitioner’s civil action remains deficient. He has not corrected the violations of Rule 3.2
as noted above by submitting his habeas corpus claims on the appropriate forms; nor has he paid
the filing fee or sought in forma pauperis status. He cannot proceed in this court until he has
thoroughly and completely complied with the Memorandum Order of August 2, 2012, and his
continued failure to comply will result in his pleadings being stricken from the record.
Appointment of Counsel
While there is no Sixth Amendment right to appointed counsel for prisoners mounting
collateral attacks on their convictions or sentences (see Pennsylvania v. Finley, 481 U.S. 551,
107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Wright v. West, 505 U.S. 277, 293, 112 S.Ct. 2482, 120

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Local Rule 3.2 provides in part, “Every complaint filed by a prisoner who is not
represented by an attorney ... seeking a writ of habeas corpus under ... 28 U.S.C. §2254 shall be
typed or legibly written on forms supplied by the court and signed by the prisoner... Complaints
that do not comply with this rule and which are not corrected after notice may be stricken by the
court ... The court, after notice, may strike all complaints that are not accompanied by either a
filing fee or a proper in forma pauperis form...”
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L.Ed.2d 225 (1992) (no Constitutional right to counsel in habeas corpus proceedings); Johnson
v. Hargett, 978 F.2d 855, 859 (5th Cir.1992)) the court may nevertheless appoint counsel to
represent an inmate pursuing federal habeas corpus relief. See 28 U.S.C. § 2254(h); Rules 6(a)
and 8(c), Rules Governing Section 2254 Cases in the District Courts; and 18 U.S.C. §3006A.
Of course, should the court ultimately determine that an evidentiary hearing is necessary, the
court must appoint counsel; but until such time, the decision on whether or not to appoint
counsel rests in the sound discretion of the trial court. United States v. Vasquez, 7 F.3d 81, 84
(5th Cir.1993). In resolving this issue, the court should consider both the legal and factual
complexity of the case along with petitioner’s ability to prepare and present his claim. Abdullah
v. Norris, 18 F.3d 571, 573 (8th Cir.1994). See Cooper v. Sheriff, Lubbock County, Texas, 929
F.2d 1078, 1084 (5th Cir.1991) (holding that in the context of a civil rights case, the court
should base the decision to appoint counsel on many factors, including the type and complexity
of the case; the plaintiff’s ability to adequately investigate and present his case; the presence of
evidence which consists of conflicting testimony so as to require skill in presentation of the
evidence and cross-examination; and the likelihood that appointment will benefit the plaintiff,
the court, and the defendants).
The undersigned finds that at this time, petitioner has failed to demonstrate that his case
is so legally or factually complex that he is unable to adequately investigate and present his
claims, and, the decision on whether or not to convene an evidentiary hearing has not yet been
made, and, indeed, cannot be made on the record currently before the court.
Stay of Proceedings
Petitioner has suggested that he is in need of a stay in order that he may properly exhaust
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unspecified claims which he has filed or intends to file in post-conviction proceedings in the
Louisiana courts. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
codified the jurisprudential rule mandating exhaustion of state court remedies (28 U.S.C. §
2254(b)(1)); provided for a 1-year period of limitations for state prisoners seeking collateral
review of their convictions and sentences (28 U.S.C. §2244(d)); and, placed restrictions on the
filing of successive habeas corpus petitions (28 U.S.C. §2244(b)).
As petitioner is apparently aware, before seeking federal habeas corpus relief, state
prisoners must first exhaust available state court remedies, by fairly presenting their federal
Constitutional claims to the state’s courts thereby giving those courts an opportunity to pass
upon and correct any Constitutional violations. 28 U.S.C. § 2254(b)(1). The prisoner must fairly
present all of his federal claims in each appropriate state court, including the state supreme court
even if that court exercises only discretionary review. Baldwin v. Reese, 541 U.S. 27, 124 S.Ct.
1347, 158 L.Ed.2d 64 (2004).
Habeas petitions presenting unexhausted claims must ordinarily be dismissed, Rose v.
Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); however, under certain limited
circumstances, petitions raising unexhausted claims may be stayed so that the petitioner can
return to state court to exhaust state remedies. Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528,
161 L.Ed.2d 440 (2005). Stays are designed to ensure that state habeas petitioners do not run
afoul of the limitations period and the prohibition against successive petitions codified by the
AEDPA as noted above. As stated in Rhines, however:
[S]tay and abeyance should be available only in limited circumstances. Because
granting a stay effectively excuses a petitioner’s failure to present his claims first
to the state courts, stay and abeyance is only appropriate when the district court
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determines there was good cause for the petitioner’s failure to exhaust his claims
first in state court. Moreover, even if a petitioner had good cause for that failure,
the district court would abuse its discretion if it were to grant him a stay when his
unexhausted claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (‘An
application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in
the courts of the State’).
Rhines, 544 U.S. at 277, 125 S.Ct. at 1535.
Petitioner has not articulated any of the claims he seeks to raise in this Court and
therefore it is impossible to determine whether any of his proposed claims remain unexhausted,
are time-barred, or even whether they are otherwise meritorious. Based on the record currently
before the Court, it appears that a stay is not appropriate for the following reasons:
First, the instant petition as it stands today, unlike the petition in Rhines, is not a “mixed
petition” containing some exhausted claims and some claims that were not exhausted. Indeed,
petitioner has failed to allege ANY claims which would entitle him to habeas corpus relief;
otherwise, he has merely implied that he intends to raise some unspecified claims in some
pending or proposed state-post conviction proceeding.
Second, from the information thus far supplied, it does not appear that petitioner
necessarily “run[s] the risk of forever losing [his] opportunity for any federal review of [his]
unexhausted claims... ” (Rhines at 275, 125 S.Ct. 1528) should this Court deny the motion for
stay. Stay and abeyance of a mixed petition might be appropriate if a state prisoner was faced
with losing the ability to assert his habeas claims based upon the expiration of the AEDPA’s 1year period of limitations codified at 28 U.S.C. §2244(d). This 1-year period generally runs
from the date that the conviction and sentence became final by the conclusion of direct review or
the expiration of the time for seeking further direct review. Petitioner has provided insufficient
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information to allow the Court to determine whether or not his unspecified habeas claims are in
danger of being time-barred if a stay is not authorized. Indeed, having raised NO claims for
relief, it is impossible to say whether petitioner intends to submit a “mixed” petition in the first
place.
Finally, petitioner has not shown good cause for failing to exhaust state court remedies
prior to filing this suit.
ORDER
Therefore,
Petitioner is ordered to comply with the August 2, 2012, memorandum order and submit
his properly executed habeas corpus petition on the form provided to him within 30 days of this
date; he is further ordered to submit the $5.00 filing fee or a properly executed application to
proceed in forma pauperis within 30 days of this order. Petitioner should also provide a detailed
memorandum to establish that he is entitled to the stay that he requests. PETITIONER’S
FAILURE TO COMPLY WILL RESULT IN THE DISMISSAL OF HIS ACTION AND
THE STRIKING OF HIS PLEADINGS.
Further, petitioner’s REQUEST FOR APPOINTMENT OF COUNSEL and for a
STAY OF THESE PROCEEDINGS are DENIED.
In Chambers, Monroe, Louisiana, September 6, 2012.

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