Walker v. Cain et al, No. 2:2015cv06809 - Document 17 (E.D. La. 2016)
Court Description: ORDER AND REASONS - For the foregoing reasons, the Court DENIES Walker's motion to stay the proceedings. The Court GRANTS Walker's motion to amend his petition only to withdraw the unexhausted claim. The Court defers ruling on Walker 9;s motion to amend his petition to assert new claims for habeas relief. IT IS ORDERED that Walker has thirty (30) days from the entry of this order to amend his petition, alleging only those claims that the Magistrate Judge has determined are exha usted and thus properly before the Court. His amended petition should therefore address only (1) the sufficiency of the evidence and (2) whether the identification procedure was impermissibly suggestive. IT IS FURTHER ORDERED that if Walker files his petition within the Court's deadline, the motion for leave to amend his petition by adding new claims for relief shall be submitted before the Magistrate Judge.. Signed by Judge Sarah S. Vance on 4/28/16. (NEF: Mag 1)(jjs)
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Walker v. Cain et al Doc. 17 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA J AMAL WALKER CIVIL ACTION VERSUS NO. 15-680 9 DARREL VANNOY SECTION: R (1) ORD ER AN D REAS ON S Pro se litigant J am al Walker petitions the Court for habeas corpus relief under 28 U.S.C. § 2254. 1 The Magistrate J udge recom m ends that Walker’s petition be dism issed without prejudice for failure to exhaust his state court rem edies. 2 Walker objected to the Magistrate J udge’s Report and Recom m endation (R&R) but does not dispute that his claim of ineffective assistance of counsel in his habitual offender proceedings is unexhausted. 3 Instead, Walker m oves the Court to am end his petition to rem ove the unexhausted claim and to stay these proceedings while he exhausts that claim in state court. 4 Walker also m oves for leave to am end his petition to assert new claim s for habeas relief, which Walker contends he has exhausted. 5 The Court resolves Walker’s “objections” (m otions to stay and to am end) as follows. A federal habeas petition should typically be dism issed if the petitioner has failed to exhaust all available state rem edies. 1 R. Doc. 3. 2 R. Doc. 14. 3 See R. Doc. 15. 4 Id. at 3-7. 5 Piller v. Ford, 542 U.S. 225, 227 (20 0 4) Id. at 3-4. Dockets.Justia.com ("[F]ederal district courts m ust dism iss 'm ixed' habeas corpus petitions--those containing both unexhausted and exhausted claim s.") (citing Rose v. Lundy , 455 U.S. 50 9 (1982)). The dism issal without prejudice of a "m ixed" petition, however, m ay result in a subsequent petition being barred by the one-year statute of lim itations set forth in 28 U.S.C. § 2244(d). See Duncan v. W alker, 533 U.S. 167, 181-82 (20 0 1) (holding that section 2244(d)'s one-year lim itation period is not tolled during the pendency of federal habeas proceedings). In light of this dilem m a, federal courts are authorized to stay a habeas petition and hold it in abeyance while a petitioner exhausts his claim s in state court. Rhines v. W eber, 544 U.S. 269, 277 (20 0 5). Such stays, however, are available only in lim ited circum stances. Id. A district court should stay federal habeas proceedings to allow a petitioner to exhaust state rem edies only when the district court finds that (1) the petitioner has good cause for failure to exhaust his claim , (2) the claim is not plainly m eritless, and (3) the petitioner has not engaged in intention al delay. Schillereff v. Quarterm an, 30 4 F. App'x 310 , 314 (5th Cir. 20 0 8) (citing Rhines, 544 U.S. at 277-78 ). Here, Walker concedes that he has failed to exhaust his state court rem edies as to his claim of ineffective assistance of counsel in his habitual offender proceedings. Walker has not, however, explained this failure. 6 Without good cause to excuse Walker’s failure to exhaust, a stay and abeyance is unwarranted. See By rd v. Thaler, No. 4:10 -cv-0 21, 20 10 WL 2228548, at *4 (N.D. Tex. J une 3, 20 10 ) (finding it unnecessary to address 6 Walker contends that he was given “erroneous advice and m isdirection” from the Louisiana State Pen itentiary Legal Program s Departm ent, resulting in his subm itting a “m ixed” habeas petition to this Court. R. Doc. 15 at 5. These contentions address only why Walker included an unexhausted claim in his habeas petition, n ot why Walker failed to exhaust that claim in state court. rem aining Rhines factors when petitioner fails to dem onstrate good cause). Therefore, the Court DENIES Walker’s m otion to stay. Nevertheless, the Court recognizes that dism issing Walker’s petition without prejudice, as the Magistrate J udge recom m ends, would effectively preclude federal review of his exhausted claim s because an y subsequent petition would be barred by one-year lim itations period in section 2244(d). 7 Under these circum stances, a district court should allow a petitioner to withdraw the unexhausted claim s and litigate the exhausted claim s properly before the court. See Rhines, 544 U.S. at 278 ("[I]f a petitioner presents a district court with a m ixed petition and the court determ ines that a stay and abeyance is inappropriate, the court should allow the petitioner to delete the unexhausted claim s an d to proceed with the exhausted claim s if dism issal of the en tire petition would unreasonably im pair the petitioner's right to obtain habeas relief."). Accordingly, the Court GRANTS Walker’s m otion to am end his habeas petition to w ithdraw the unexhausted claim . The Court will allow Walker thirty (30 ) days from the entry of this order to am end his federal habeas petition by withdrawing the unexhausted claim of ineffective assistance of counsel in his habitual offender proceeding. Walker’s m otion to am end his habeas petition to assert new claim s, however, is another m atter. Walker subm itted a handwritten m otion to am end his federal petition, which reads in relevant part as follows: 7 By the Magistrate J udge’s calculations, which the Court adopts, Walker filed his federal petition only seventy-five (75) days shy of the expiration of the federal lim itations period. R. Doc. 14 at 8 . Movant further requests to am end and supplem ent to his habeas application these additional collateral review claim s that were exhausted; listed and argued as: .... Two hearings were held on Novem ber 13, 20 0 8. The state district court held that probable cause existed for the continued confinem ent of Walker and the m otion to suppress his 8 Walker’s handwritten m otion is unfinished. Several pages later in his “objections,” however, Walker attaches a portion of his direct appeal brief to the Louisiana Fifth Circuit Court of Appeal. The portion Walker subm its begins, “identification was den ied. At that hearing Ms. Davis testified that she was at a birthday party and went outside to m ake a phone call. . . .”9 A review of Walker’s habeas petition and attached exhibits reveals that Walker re-wrote the first few sentences of his appeal brief in his handwritten m otion to am end. 10 Construing Walker’s subm issions broadly, it seem s that Walker’s handwritten m otion should be read with the incom plete portion of his appeal brief an d that Walker seeks to am en d his habeas petition by addin g the ineffective assistance of counsel claim s and claim of cum ulative error that he asserted on direct appeal. Because the Magistrate J udge has not addressed the m erits of Walker’s exhausted claim s, which are properly before the Court, the Court defers ruling on Walker’s m otion to am end to assert new claim s for habeas relief. This m otion shall be subm itted to the Magistrate J udge, to be considered with the am ended petition Walker will file within thirty (30 ) days of entry of this order. 8 R. Doc. 15 at 3-4. 9 R. Doc. 15 at 10 . 10 R. Doc. 3-1 at 4. For the foregoing reasons, the Court DENIES Walker’s m otion to stay the proceedings. The Court GRANTS Walker’s m otion to am end his petition only to withdraw the unexhausted claim . The Court defers rulin g on Walker’s m otion to am end his petition to assert new claim s for habeas relief. IT IS ORDERED that Walker has thirty (30 ) days from the entry of this order to am end his petition, alleging only those claim s that the Magistrate J udge has determ ined are exhausted and thus properly before the Court. His am en ded petition should therefore address only (1) the sufficiency of the evidence and (2) whether the identification procedure was im perm issibly suggestive. IT IS FURTHER ORDERED that if Walker files his petition within the Court’s deadline, the m otion for leave to am end his petition by adding new claim s for relief shall be subm itted before the Magistrate J udge. New Orleans, Louisiana, this _ 28th_ day of April, 20 16. ___ __________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE
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