Preston v. Union Parish Detention Center

Filing 4

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus: IT IS RECOMMENDED that Petitioner's application for writ of habeas corpus be DISMISSED WITHOUT PREJUDICE. Objections to R&R due by 8/17/2009. Signed by Magistrate Judge Mark Hornsby on 7/29/09. (crt,Cassanova, M) Modified on 7/29/2009 to recommend that the application for writ of habeas corpus be dismissed without prejudice. Case was erroneously docketed to recommend dismissal with prejudice as a civil rights complaint. (Cassanova, M).

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF LOUISIANA S H R EV E P O RT DIVISION J A M E S EDWARD PRESTON VERSUS W A R D E N RICHARD BRAZZEL CIVIL ACTION NO. 09-1138-P J U D G E WALTER M A G I S T R A T E JUDGE HORNSBY

R E P O RT AND RECOMMENDATION I n accordance with the standing order of this Court, this matter was referred to the undersigned Magistrate Judge for review, report and recommendation. S T A T E M E N T OF CLAIM Befo re the Court is a petition for writ of habeas corpus filed by pro se petitioner J a m e s Edward Preston ("Petitioner"), pursuant to 28 U.S.C. §2254. This petition was r e c e iv e d and filed in this Court on July 7, 2009. Petitioner is incarcerated at the Union Parish D e t e n t io n Center in Farmerville, Louisiana. He challenges his state court convictions and senten ces. He names Warden Richard Brazzel as respondent. O n February 9, 2009, Petitioner was convicted of one count of possession of a Sch edule II, CDS and one count of possession of a Schedule III, CDS in Louisiana's First J u d i c ia l District Court, Parish of Caddo. Subsequently, he was sentenced to two ten year s e n t e n c es of imprisonment at hard labor. The trial court ordered the sentences to run con cur ren tly to one another and any other sentence.

In support of this petition, Petitioner alleges (1) his sentences were ordered to run conc urren tly to his Texas state court sentence and (2) he was to report to Texas on March 5, 200 9 to begin serving his Texas sentence. For the reasons stated below, Petitioner's application for habeas relief should be d i s m i s s e d for failure to exhaust state court remedies. LAW AND ANALYSIS H a b e a s corpus relief is available to a person who is in custody "in violation of the C o n s t i tu t i o n or laws or treaties of the United States." 28 U.S.C. § 2254. However, the right to pursue habeas relief in federal court is not unqualified. It is well settled that a petitioner s e e k i n g federal habeas corpus relief cannot collaterally attack his state court conviction in f e d e r a l court until he has exhausted all available state remedies. See Rose v. Lundy, 455 U.S. 509 , 102 S.Ct. 1198 (1982); Minor v. Lucas, 697 F.2d 697 (5th Cir. 1983). This requirement is not a jurisdictional bar but a procedural one erected in the interest o f comity providing state courts first opportunity to pass upon and correct alleged c o n s t it u t io n a l violations. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, (1971); R o s e , 455 U.S. at 509, 102 S. Ct. at 1198. Moreover, in the event that the record or the habeas c o r p u s petition, on its face, reveals that the petitioner has not complied with the exhaustion requ ireme nt, a United States district court is expressly authorized to dismiss the claim. See Res ende z v. McKaskle, 722 F.2d 227, 231 (5th Cir. 1984). P e t i ti o n e r did not file a direct appeal and he did not file his application for p o s t - co n v i c t io n relief in the state court until July 1, 2009. This petition was filed in this Court

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on July 7, 2009. Thus, Petitioner could not have exhausted his state court remedies prior to filing his petition in this Court. A cc or di ng ly; I T IS RECOMMENDED that Petitioner's application for writ of habeas corpus be DI SM ISS ED WITHOUT PREJUDICE. OBJECTIONS U n d e r the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties a g g r i e v ed by this recommendation have ten (10) business days from service of this Report and R e c o m m e n d a t i o n to file specific, written objections with the Clerk of Court, unless an e x t e n s io n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party's objections within ten (10) days after being served with a copy thereof. Counsel are d i r e c te d to furnish a courtesy copy of any objections or responses to the District Judge at the t i m e of filing. A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n set forth above, within ten (10) days after being served with a copy shall bar t h a t party, except upon grounds of plain error, from attacking on appeal the factual findings a n d legal conclusions that were accepted by the district court and not objected to by the afo rem entio ned party. See Douglas v. U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc). T H U S DONE AND SIGNED, in chambers, in Shreveport, Louisiana, this 29th day o f July, 2009.

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