Kamau v. Bossier Medium Security Facility

Filing 8

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Khalfani Kamau: IT IS RECOMMENDED that Petitioner's application for writ of habeas corpus be DISMISSED WITHOUT PREJUDICE. Objections to R&R due by 12/28/2009. Signed by Magistrate Judge Mark Hornsby on 12/10/09. (crt,Cassanova, M) Modified on 12/11/2009 to correct signature date (Cassanova, M).

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF LOUISIANA S H R EV E P O RT DIVISION K H A L F A N I M. KAMAU VERSUS WARDEN C I V I L ACTION NO. 09-1439-P J U D GE HICKS 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 u n d e r s ig n e d 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 K h a l f a n i M. Kamau ("Petitioner"), pursuant to 28 U.S.C. §2254. This petition was received a n d filed in this Court on August 10, 2009. Petitioner is currently incarcerated at the A v o y e l l e s Correctional Center in Cottonport, Louisiana. He challenges his state court conv iction and sentence. He names the W arden as respondent. O n October 25, 2007, Petitioner was convicted of one count of possession of a c o n t r o ll e d dangerous substance in Louisiana's Twenty-Sixth Judicial District Court, Parish o f Bossier. Subsequently, he was sentenced to 20 years imprisonment at hard labor with all b u t 15 years suspended and 10 years without benefit of parole, probation, or suspension of sen tenc e. In support of this petition, Petitioner alleges (1) he received ineffective assistance of appe llate counsel and (2) he was denied due process during the habitual offender proceedings.

F o r 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 t o 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 admits that he has not exhausted all available state court remedies prior to f i l in g his petition in this Court. [Doc. 1]. Petitioner currently has a writ of review pending wit h the Supreme Court of Louisiana. Accordingly;

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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 fourteen (14) 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 seven (7) 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 fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the factual f i n d i n g s and legal conclusions that were accepted by the district court and not objected to by t h e aforementioned 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 10th day o f December, 2009.

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