Young v. River Correctional Center

Filing 17

MEMORANDUM ORDER: that Petitioner, within thirty (30) days from the date of this order, expressly state whether he seeks review of the unexhausted claims in this court at this time, whether he wishes to dismiss same, or whether he wishes to dismiss t his entire petition to refile at a later date after he exhausts state court remedies on all claims asserted herein. Failure to comply with this court order will result in dismissal of this suit pursuant to rules 41(b) and 16(f) of the Federal Rules of Civil Procedure. Signed by Magistrate Judge Mark L Hornsby on 6/19/15. (crt,Delgado, S)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
NICHOLAS LOYD YOUNG, SR.

CIVIL ACTION NO. 13-805-P

VERSUS

JUDGE STAGG

WARDEN

MAGISTRATE JUDGE HORNSBY
MEMORANDUM ORDER

Before the court is a petition for writ of habeas corpus filed by pro se petitioner
Nicholas Loyd Young, Sr. (“Petitioner”), pursuant to 28 U.S.C. § 2254. This petition was
received and filed in this court on April 17, 2013. Petitioner is incarcerated in the River
Correctional Center in Ferriday, Louisiana. He challenges his state court conviction and
sentence. Petitioner names the Warden of River Correctional Center as respondent.
On August 23, 2010, Petitioner pleaded guilty in the Louisiana Twenty-Sixth Judicial
District Court, Parish of Bossier, to second offense failure to register as a sex offender. On
December 7, 2010, he was sentenced to 20 years imprisonment at hard labor without benefit
of parole, probation, or suspension of sentence.
In support of this petition, Petitioner claims (1) he received ineffective assistance of
counsel, (2) his confession was coerced, and (3) his guilty plea is illegal.
Petitioner has failed to properly exhaust claims (2) that his confession was coerced
and (3) that his guilty plea is illegal. It is well settled that a petitioner seeking federal habeas
corpus relief cannot collaterally attack his state court conviction in federal court until he has

exhausted available state remedies. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71
L.Ed.2d 379 (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 of comity providing state
courts first opportunity to pass upon and correct alleged constitutional violations. Picard v.
Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438, 443 (1971); Shute v. Texas, 117
F.3d 233 (5th Cir. 1997). Additionally, under 28 U.S.C. §2254(b)(1)(A)1 the district court
is precluded from granting habeas relief on an unexhausted claim.
In light of the above procedural history, the instant petition constitutes a “mixed”
petition, having both exhausted and unexhausted claims. When a habeas petition includes
both exhausted claims and unexhausted claims, the district court must dismiss the entire
"mixed petition." Murphy v. Johnson, 110 F.3d 10, 11, (5th Cir. 1997), quoting, Rose v.
Lundy, 455 U.S. at 522, 102 S.Ct. at 1205; Graham v. Johnson, 94 F.3d 958, 968 (5th Cir.
1996).
Because all of Petitioner’s claims have not been exhausted in the state courts, this
entire petition is subject to dismissal. On the other hand, if Petitioner dismisses his
unexhausted claims and asserts only his exhausted claim, he may be entitled to go forward.
However, Petitioner is put on notice that dismissing the unexhausted claims is not without

1

§ 2254 provides, in pertinent part:
(b)(1) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted unless it appears that-(A) the applicant has exhausted the remedies available in the courts of
the State;
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consequence. If he should dismiss the unexhausted claims at this time, he may be precluded
from bringing the claims in the future. Specifically, the law with respect to successive
petitions requires a petitioner to obtain authorization from the appropriate court of appeals
before filing a second or successive petition. 28 U.S.C. §2244(b)3)(A)2 . Additionally, any
future filings may be barred by the one-year statute of limitations imposed by 28 U.S.C.
§2244(d)(1)3 .
Thus, Petitioner has three alternatives. He may choose to: (1) maintain this petition
with the unexhausted claims with full knowledge that the entire petition is subject to

2

28 U.S.C. § 2244(b)(3)(A), provides in pertinent part, “[b]efore a second or successive application permitted by this
section [28 U.S.C. § 2254] is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to consider the
application.”

As a general rule, section 2244(d)(1)(A) requires that a petitioner bring his section 2254
claims within one year of the date his conviction became final. 28 U.S.C. § 2244(d) provides,
(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of-(A) the date on which the judgment became final by conclusion of direct review
or the expiration of the time for seeking such review;
...
The section also sets up statutory exceptions which can, in appropriate cases, extend the
time for filing a federal habeas petition beyond the one year period after final conviction
if the state imposes an unconstitutional impediment to the filing of a federal habeas
petition, if the Supreme Court recognizes a new constitutional right and makes that right
retroactive to cases on collateral review, or if the petitioner is unable through the exercise
of due diligence to discover the factual predicate of the petitioner’s federal habeas claim.
28 U.S.C. § 2244(d)(1)(B)(C)and (D).
3

The time during which a “properly filed application for State post-conviction” review is
pending shall not be counted toward any period of limitation under this section. 28 U.S.C. 2244
(d)(2).
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dismissal; or (2) indicate to the court that he wishes to dismiss the unexhausted claims with
full knowledge that he will risk the opportunity to present these claims in a successive
petition; or (3) dismiss this entire petition so that he can exhaust all of the claims before
refiling with full knowledge that he may be barred by the one-year time limitation provision
on federal habeas review.
Accordingly;
IT IS ORDERED that Petitioner, within thirty (30) days from the date of this order,
expressly state whether he seeks review of the unexhausted claims in this court at this time,
whether he wishes to dismiss same, or whether he wishes to dismiss this entire petition to refile at a later date after he exhausts state court remedies on all claims asserted herein.
Failure to comply with this court order will result in dismissal of this suit
pursuant to rules 41(b) and 16(f) of the Federal Rules of Civil Procedure.
THUS DONE AND SIGNED in Chambers at Shreveport, Louisiana, this 19th day
of June 2015.

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