Filed: May 20, 2016
Latest Update: May 20, 2016
Summary: ORDER STANWOOD R. DUVAL, Jr. , District Judge . The Court, having considered the petition, the record, the applicable law and the Report and Recommendation of the United States Magistrate Judge, and the finding that the Objection to Report and Recommendation (Rec. Doc. 20) filed by Keith Stewart is without merit, hereby approves the Report and Recommendation of the United States Magistrate Judge and adopts it as its own opinion. The petitioner objects to the Report and Recommendation base
Summary: ORDER STANWOOD R. DUVAL, Jr. , District Judge . The Court, having considered the petition, the record, the applicable law and the Report and Recommendation of the United States Magistrate Judge, and the finding that the Objection to Report and Recommendation (Rec. Doc. 20) filed by Keith Stewart is without merit, hereby approves the Report and Recommendation of the United States Magistrate Judge and adopts it as its own opinion. The petitioner objects to the Report and Recommendation based..
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ORDER
STANWOOD R. DUVAL, Jr., District Judge.
The Court, having considered the petition, the record, the applicable law and the Report and Recommendation of the United States Magistrate Judge, and the finding that the Objection to Report and Recommendation (Rec. Doc. 20) filed by Keith Stewart is without merit, hereby approves the Report and Recommendation of the United States Magistrate Judge and adopts it as its own opinion.
The petitioner objects to the Report and Recommendation based on his contention that the sentence he received on March 20, 2013, is subject to habeas relief because it is a life sentence with the benefit of parole which is a sentence term that is not authorized by the Louisiana legislature and is thus for an indeterminate term. The Louisiana legislature must determine the appropriate sentence term and procedural requirements in light of the application of Miller v. Alabama, 132 S.Ct. 2455, 2460 (2012) and Montgomery v. Louisiana, 136 S.Ct. 718 (2016).
As noted in the Report and Recommendation, the record reflects that the state district court has granted a new motion to correct and vacate an illegal sentence. Initially, that hearing was set for April 13, 2016. From the court record, that re-sentencing was continued to July 18, 2016, because the Louisiana legislature still had not addressed this issue. (See Exh. 1) As such, the Court finds that the Report and Recommendation is correct and notes that the dismissal of this petition is without prejudice to petitioner's ability to seek federal relief with respect to that new sentence, once any new sentence is final, as long as it is done in a timely manner after exhausting his remedies in state courts. Accordingly,
IT IS ORDERED that the petition for federal habeas corpus relief filed by Keith Stewart is DISMISSED AS MOOT.
24th Judicial District Court
Parish of Jefferson — State of Louisiana
State of Louisiana
Versus Case Number: 80-2360
KEITH STEWART Division: C
DOB: 06/27/1964 Complaint: 8303880
Judge: June Berry Darensburg Date: 04/13/2016
ADA: Joshua Vanderhooft Court Reporter: Donna D'Amico
The Defendant KEITH STEWART, did not appear before the bar of the Court this day for Re sentencing.
The Defendant was represented by POWELL MILLER.
The defendant is in Louisiana State Penitentiary.
Writ cancelled for today's hearing.
The Resentencing was ordered continued and re-set for Monday, July 18, 2016.
The continuance was requested jointly.
The reason for the continuance is: To await Legislative Order in regards to Alabama vs Miller.
/s/Cherie L. Ball
___________________________________
Cherie L. Ball, Deputy Clerk
