Young v. Cain
MEMORANDUM ORDER re 11 MOTION to Stay filed by Glenn Young. IT IS ORDERED that Petitioners Motion to Stay in Abeyance Writ of Habeas Corpus Proceedings (Doc. 11) is DENIED. IT IS FURTHER 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 re-file at a later date after he exhausts st ate 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 2/14/2018. (crt,Keller, J)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
CIVIL ACTION NO. 15-2759-P
WARDEN N. BURL CAIN
MAGISTRATE JUDGE HORNSBY
Before the court is a petition for writ of habeas corpus filed by pro se petitioner
Glenn Young (“Petitioner”), pursuant to 28 U.S.C. §2254. This petition was received
and filed in this court on November 30, 2015. Petitioner also filed a Motion to Stay in
Abeyance Writ of Habeas Corpus Proceedings (Doc. 11). This motion was filed and
received in this court on May 23, 2017. Petitioner is incarcerated at the Louisiana State
Penitentiary in Angola, Louisiana. He challenges his state court convictions, habitual
offender adjudication, and sentences. He names Warden N. Burl Cain as respondent.
On April 4, 2008, Petitioner was convicted of one count of possession of a
Schedule II, controlled dangerous substance, and one count of illegal use of a weapon in
Louisiana’s First Judicial District Court, Parish of Caddo. On April 29, 2008, he was
adjudicated a third felony offender. On May 13, 2008, he was sentenced to 50 years
imprisonment at hard labor without benefit of parole, probation, or suspension of sentence
as to each count. The trial court ordered the sentences to run concurrently.
Petition for Habeas Corpus
In support of this petition, Petitioner alleges (1) the evidence was insufficient to
support either conviction; (2) the habitual offender adjudication was unconstitutional; (3)
the trial court erred in sentencing him after denial of his motion for new trial and without
waiver of the 24-hour delay; (4) he was convicted and sentenced for a crime that had no
written accusation; (5) his sentences are excessive; (6) his sentence is indeterminate; and
(7) he received ineffective assistance of counsel - a) failed to file a motion to suppress; b)
failed to object and request exclusion of illegally obtained evidence; c) failed to object to
the mention of marijuana; d) failed to file motion to quash and ineffective assistance of
appellate counsel; e) trial court failed to note the race and gender of potential jurors and
his counsel failed to object to the State’s peremptory strikes; f) failed to have bench
conferences recorded; g) failed to object to the testimony regarding the ERT entry and
request a mistrial; and h) failed to request a special jury instruction regarding accomplice
Petitioner has failed to demonstrate that he has exhausted claims 1, 2, 3, 5, and 6
in the Supreme Court of Louisiana and claims 7e, f, g, and h in the Louisiana Second
Circuit Court of Appeal and the Supreme Court of Louisiana. 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
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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.
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(s), he may be entitled to go
forward. However, Petitioner is put on notice that dismissing the unexhausted claims is
not without consequence. If he should dismiss the unexhausted claims at this time, he
may be precluded from bringing these claims in the future. Specifically, the law with
respect to successive petitions requires a petitioner to obtain authorization from the
§ 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
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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 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
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
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. §
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
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claims before refiling with full knowledge that he may be barred by the one-year time
limitation provision on federal habeas review.
Motion to Stay in Abeyance
In support of his motion to stay in abeyance, Petitioner claims he has three
additional unexhausted claims based on newly discovered facts not known to him or his
attorney. He claims he filed an application for post-conviction relief in the Louisiana
First Judicial District Court on March 27, 2017. Petitioner raises the following new
claims in his application for post-conviction relief: (1) the Clerk of Court coded the race
and gender of prospective jurors on the clerk’s jury worksheet and he was prejudiced
because he did not know the true identity of each seated prospective juror, (2) former
members of the Caddo Parish District Attorney’s Office employed a custom, usage,
and/or policy to discriminate against African American citizens because of their race and
their discrimination is long established, and (3) prospective juror Alicia Kitterlin was not
on the general jury pool venire list and she was selected as a juror.
The stay and abeyance requested by Petitioner “should be available only in limited
circumstances.” Rhines v. Weber, 125 S.Ct. 1528 (2005). Courts should be cautious
about granting such stays because they undermine the AEDPA’s goal of streamlining
federal habeas proceedings by decreasing a petitioner’s incentive to exhaust all his claims
in state court prior to filing his federal petition. Id. A “stay and abeyance is appropriate
when the district court finds that there was good cause for the failure to exhaust the claim;
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the claim is not plainly meritless; and there is no indication that the failure was for
purposes of delay.” Id.
The court finds that Petitioner has not shown good cause for his failure to exhaust
these three claims prior to filing his petition for habeas corpus. Petitioner has provided no
justification for not having discovered these alleged new facts at the time of his trial in
2008. Petitioner provides no explanation as to why he did not discover the clerk’s jury
worksheet until April of 2016. Furthermore, he knew at the time of his trial that he did
not know the true identity of each seated prospective juror. Petitioner admits that the
Caddo Parish District Attorney’s Office practice of discriminating in the jury selection
process is long established. Petitioner provides no explanation as to why he did not
receive a copy of his general jury pool venire list until April 29, 2016.
IT IS ORDERED that Petitioner’s Motion to Stay in Abeyance Writ of Habeas
Corpus Proceedings (Doc. 11) is DENIED.
IT IS FURTHER 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 re-file 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.
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THUS DONE AND SIGNED in Chambers at Shreveport, Louisiana, this 14th
day of February, 2018.
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