KAREN WELLS ROBY, Magistrate Judge.
This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing if necessary, and to submit proposed findings and recommendations pursuant to
The petitioner, Claude Collins ("Collins"), is a convicted inmate currently incarcerated in the Dixon Correctional Institute in Jackson, Louisiana.
Pursuant to a plea agreement, on September 8, 2014, the State entered a nolle prosequi as to count one, felon in possession of a weapon, and agreed not to pursue a multiple offender bill against Collins.
Collins's convictions and sentences became final thirty (30) days later, on October 8, 2014, because he did not seek reconsideration of the sentences or move for leave to appeal. La. Code Crim. P. art. 914;
In the meantime, on September 30, 2014, Collins signed and submitted a motion to amend, modify, or reconsider his sentence based on his good behavior and family hardship.
That same day, October 8, 2014, Collins signed and submitted a motion to withdraw his guilty pleas and to amend his sentences.
On October 16, 2014, Collins also submitted a motion seeking to amend his sentence to a suspended sentence based on lack of evidence.
Collins submitted another motion to reconsider his sentence on November 3, 2014, which the state trial court also denied without stated reasons on November 14, 2014.
Undaunted, Collins submitted another motion to reconsider his sentence on January 27, 2015.
Collins later submitted a motion seeking issuance of a writ of habeas corpus on March 30, 2015, seeking to have his sentence reduced.
On September 2, 2015, the Clerk of Court filed Collins's federal petition for habeas corpus relief in which he asserted, under a broad reading, that he was denied due process and equal protection when the state trial court used a defective bill of information.
The State filed a response in opposition to Collins's petition conceding that it was timely filed.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214,
In this case, the State concedes and the record reflects that Collins's federal petition was timely filed under the AEDPA. As indicated above, however, the State argues that Collins did not properly exhaust his claim in the state courts. The State further alleges that Collins's claim is in procedural default. However, because no state court has had the opportunity to review Collins's claims, there has been no state imposed procedural default for this Court to consider or give deference. That defense must be rejected on the current record. For the following reasons, however, the record confirms that Collins did not exhaust state court review of his claim raised in this federal petition for the first time.
"A fundamental prerequisite to federal habeas relief under § 2254 is the exhaustion of all claims in state court prior to requesting federal collateral relief." Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998) (citing Rose v. Lundy, 455 U.S. 509, 519-20 (1982)); Nobles, 127 F.3d at 419. "A federal habeas petition should be dismissed if state remedies have not been exhausted as to all of the federal court claims." Whitehead, 157 F.3d at 387 (citing 28 U.S.C. § 2254(b)(1)(A); Rose, 455 U.S. at 519-20).
The well-established test for exhaustion requires that the substance of the federal habeas claim be fairly presented to the highest state court in a procedurally proper manner. Whitehead, 157 F.3d at 387 (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)). "State prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process," including discretionary review when that review is part of the State's ordinary appellate review procedures. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). "A federal court claim must be the `substantial equivalent' of one presented to the state courts if it is to satisfy the `fairly presented' requirement." Whitehead, 157 F.3d at 387 (citing Picard, 404 U.S. at 275-78). AThis requirement is not satisfied if the petitioner presents new legal theories or new factual claims in his federal application." Id., 157 F.3d at 387 (citing Nobles, 127 F.3d at 420); Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001).
For exhaustion purposes, it also is not enough for a petitioner to have raised the claims in the lower state courts if the claims were not specifically presented to the state's highest court, and vice versa. Baldwin v. Reese, 541 U.S. 27, 32 (2004). Furthermore, a petitioner does not fairly present a claim to the state's highest court if that court must read beyond the petition or brief, such as a lower court opinion, to find a claim not otherwise specifically raised. Id., 541 U.S. at 32.
In this case, the State argues that Collins has not exhausted available state court remedies in a procedurally proper manner with respect to his due process and equal protection challenges to the bill of information by which he was charged. Collins has not raised this issue in any of his motions to the state trial court seeking reconsideration of his sentence. In fact, the record establishes that Collins has not presented any challenge to his conviction or sentence to the Louisiana First Circuit Court of Appeal or the Louisiana Supreme Court to complete exhaustion of any issue arising from his conviction or sentence.
The record discloses no good cause for Collins's failure to properly and fully exhaust his claim in the state courts, and the Court can find none from its review of the record. Rhines v. Weber, 544 U.S. 269, 277-78 (2005). Having found no good cause, this petition should be dismissed without prejudice for failure to exhaust available state court remedies.
For the foregoing reasons, it is
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation
