LOUIS MOORE, Jr., Magistrate Judge.
This matter was referred to the United States Magistrate Judge for the purpose of conducting hearings, including an evidentiary hearing, if necessary, and submission of proposed findings and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), and as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases.
Upon review of the entire record, the court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Accordingly, it is recommended that the instant petition be
Petitioner, Edward Lowery, is a state prisoner currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. Lowery was convicted on January 5, 2004, in the Twenty-Second Judicial District Court for the Parish of St. Tammany, of two counts of simple burglary. The State filed a multiple offender bill of information against Lowery and he was adjudicated to be a fourth felony offender. Pursuant to his multiple offender status, Lowery was sentenced, as to count one, to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. As to count two, Lowery was sentenced to twelve years imprisonment at hard labor, to be served concurrently with the enhanced sentence imposed as to count one.
Lowery appealed his convictions and sentences, raising the following six claims: 1) the trial court erred in denying his motion to suppress because he was subjected to an unreasonable search and seizure; 2) the trial court erred in finding Lowery to be a fourth felony offender; 3) he received an excessive sentence; 4) the trial court failed to advise him of the time for seeking post-conviction relief; 5) the trial court erred in adjudicating him to be a fourth-felony offender as one of the prior offenses was punishable by an imprisonment term of less than five years; 6) the trial court erred by considering fingerprints contained in an arrest registry for purposes of adjudicating him to be a fourth-felony offender; and, 7) the trial court erred in imposing two sentences. On December 17, 2004, the Louisiana First Circuit Court of Appeal affirmed Lowery's convictions and sentences, but remanded the matter with instructions that the trial court advise Lowery of the applicable time period for seeking post-conviction relief. State v. Lowery, 890 So.2d 711 (La. App. 1 Cir. Dec. 17, 2004). On May 13, 2005, the Louisiana Supreme Court denied Lowery's writ application. State v. Lowery, 902 So.2d 1018 (La. 2005).
Following the completion of his direct appeal proceedings, Lowery sought post-conviction relief, filing numerous writ applications in the state court system. In particular, Lowery filed the following writ applications which the Louisiana Supreme Court denied.
On June 10, 2010, Lowery filed his first federal habeas application, Civil Action 2010-3908 "N"(6), raising as his sole claim for relief that counsel was ineffective because he failed to gather evidence and/or witnesses. Thereafter, Lowery filed an amended complaint, raising the following claims:
It is well-established that a federal habeas petitioner must first exhaust state court remedies by bringing his claims before the state courts before proceeding to federal court. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L. Ed. 2d 379 (1982). Generally, the exhaustion requirement is satisfied only when the grounds urged in a federal petition were previously presented to the state's highest court, the Louisiana Supreme Court, in a procedurally proper manner. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
This court's comparison between Lowery's claims which were adjudicated by the Louisiana Supreme Court and, as such, exhausted, and the claims which Lowery set forth in his habeas petition, reflected that Lowery had failed to exhaust his state court remedies with respect to claims 2), 3), 4), 6), 7), 8), 9), 10), 11), 12), and 15). Accordingly, the court denied Lowery's habeas application without prejudice due to his failure to exhaust his state court remedies. Lowery v. Cain, 2011 WL 3924971 (E.D. La. Aug. 11, 2011) (Moore, MJ.), adopted 2011 WL 3957256 (E.D. La. Sept. 2, 2011 (Engelhardt, J.).
On September 21, 2011, Lowery filed the instant application for federal habeas corpus relief. (Fed. rec., doc. 1). In this, his second habeas application, Lowery raises the following claims:
Since his first federal habeas corpus application (Civil Action 2010-3908), Lowery has filed only one additional post-conviction action, No. 2009-KH-0246, which has been adjudicated by the state's highest court. On October 1, 2010, the Louisiana Supreme Court summarily denied relief in No. 2009-KH-0246. State ex rel. Lowery v. State, 45 So.3d 1088 (La. 2010).
A review of Lowery's writ application in the above referenced case reflects a confusing pleading. Lowery states that he "seeks a ruling as to all 19 claims and a ruling as to each of those issues which is now being sent to the Louisiana State Supreme Court". (St. rec., supplemental vol 3, supervisory writ application, p. 2). Lowery, however, makes no mention of and provides no supporting arguments for the "19 claims" which he seeks the Louisiana Supreme Court to adjudicate. Instead, he merely lists six ineffectiveness claims,
Based upon the barebones writ application which Lowery filed with the Louisiana Supreme Court, along with the numerous attachments thereto, it is apparent that Lowery, in an effort to attain relief from the state high court, expected the state high court to review the arguments raised and decisions rendered in connection with his lower court filings. Lowery, in fact, admits that his 19 claims were not included in the writ of certiorari he filed with the state high court. Instead, he "submitted everything [he] filed with the First Circuit Court of Appeal with the Supreme Court." (Fed. rec., doc. 8, motion to stay, p. 8). As shown below, such a writ application is insufficient for purposes of proceeding to federal court to seek habeas corpus relief.
In Baldwin v. Reese, 541 U.S. 27, 31, 124 S.Ct. 1347, 1350, 158 L.Ed.2d 64 (2004), the Supreme Court reviewed the well-settled law regarding a habeas petitioner's exhaustion requirement.
Thereafter, the Court determined that in order to satisfy the "fair presentation" requirement, a habeas petitioner must present his claims in the writ application presented to the higher state court rather than relying on pleadings submitted to lower courts. Specifically, the Court provided:
Id. [Emphasis original].
Based upon the above, this court finds that petitioner, Edward Lowery, once again, has failed to exhaust his state court remedies. A review of his post-conviction claims (see supra at pp. 3-5) and direct appeal claims (see supra at pp. 2-3) properly brought to and adjudicated by the Louisiana Supreme Court, along with the listed ineffectiveness claims contained in his most recent state supreme court proceeding (2009-KH-0246), reflects that Lowery has failed to exhaust his state court remedies with respect to the following claims presently before this court:
In a situation such as this, where a petitioner raises both exhausted and unexhausted claims, presenting a "mixed" petition to the court, the requirement, under Lundy, supra, that all habeas claims be fully exhausted, coupled with the one-year statute of limitations imposed under 28 U.S.C. § 2244(d)(1) of the AEDPA, can cause prescription problems. Such a problem arose in Rhines v. Weber, 544 U.S. 269, 275, 125 S.Ct. 1528, 1533, 161 L.Ed.2d 440 (2005), wherein the Supreme Court observed:
While an obvious remedy to the above-described problem is for a federal court to stay a petitioner's habeas action until he exhausts his state court remedies, the Court warned against the wholesale embrace of such an approach, noting that the dual purpose of the AEDPA, enacted "against a backdrop of Lundy's total exhaustion requirement", is reducing the potential for delay in finalizing state court judgments and encouraging litigants to bring all their claims to state court before bringing them to federal court. Rhines, 544 U.S. at 276-77, 125 S.Ct. at 1534. The Court warned that staying federal habeas corpus petitions and holding them in abeyance, "if employed too frequently, has the potential to undermine [the above-described] twin purposes", explaining:
Rhines, 544 U.S. at 277, 125 S.Ct. at 1534. With this in mind, the Court decreed:
Rhines, 544 U.S. at 277, 125 S.Ct. at 1535.
In his motion to stay the instant action, Lowery complains that the district court, the Twenty-Second Judicial District Court for the Parish of St. Tammany, erroneously determined that Lowery had abandoned several of his 19 claims and, as such, did not address them all, limiting its decision to his ineffective assistance of counsel claims. Lowery seeks to stay his federal habeas action in order "to amend the writ of habeas corpus or in the alternative [have this] court hold a hearing ... or remand the case back to [the district court].... ordering the [district court] to hear [all 19] claims...." (Fed. rec., doc. 8, motion to stay, p. 8).
The basis for this court's finding that Lowery has not exhausted his state court remedies is not the fact that the state district court failed to rule on all of the 19 claims set forth in the post-conviction application which Lowery filed with the district court. Instead, it is because Lowery failed to properly present his 19 claims to the Louisiana Supreme Court. As such, the court finds that Lowery has failed to show "good cause" for his failure to exhaust his 19 claims by properly presenting said claims to the Louisiana Supreme Court.
It is therefore
It is further
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. 28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996)(en banc).
