Otis McKinley VS Warden/Lynn Cooper

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 1719 OTIS R MCKINLEY na VERSUS J LYNN WARDEN COOPER AVOYELLES CORRECTIONAL CENTER DATE OF JUDGMENT APR 2 6 2013 ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NLJMBER 606 DIVISION G PARISH OF EAST BATON ROUGE 116 STATE OF LOUISIANA HONORABLE TIMOTHY E KELLEY JUDGE Otis R McKinley Cottonport Louisiana Appellant Plaintiff William L Kline Counsel for Defendant Appellee Baton Louisiana Department of Corrections Rouge Louisiana Pro Se BEFORE KLJHN PETTIGREW AND McDONALD JJ Disposition AFFIRMED V KUI J Appellant Otis R McKinley an inmate in the custody of the Louisiana Department of Public Safety and Corrections DPSC appeals the district court s dismissal without prejudice of his Petition for Civil Writ of Habeas Corpus Ad Testificandum for failure to state a cause of action We affirm PROCEDURAL BACKGROUND On October 18 2011 McKinley filed a petition in district court seeking a writ of habeas eorpus in which he alleged DPSC had inaccurately calculated his release date based on an erroneous determination that he was ineligible for good time credits He prayed therein for the issuance of a writ of habeas corpus ordering his immediate or speedy release Pursuant to the requirements of La R 15 and 15 McKinley S 1178 1188 s petition was screened by a commissioner prior to DPSC being served After screening the commissioner issued a report concluding that McKinley complaint s was in fact a time computation claim involving eligibility for good time Since the Corrections Administrative Remedy Procedure CARP La R 15 et seq is S 1171 the exclusive remedy by which an inmate may challenge time computations relative to good time the commissioner recommended that McKinley request for habeas s corpus relief be dismissed because his petition failed to state a cause of action for McKinley filed a motion far an en banc heazin before this Court based on his assertion that he was denied a fair hearing in district court Uniform Rules Courts of Appeal Rule 1 provides 5 that w autharized by law or when the court deems it necessary to promote justice or hen expedite the business of court the court may sit en banc However McKinley has cited no law nor are we aware of any law that would require an en banc rehearing in this case Further to sit en banc would not expedite the business of court in this case but would in fact delay its resolution Finally no showing has been made that an en banc is necessary herein in order to promote justice Accordingly the motion for en banc hearing is denied The office of the commissioner of the Nineteenth Judicial District Court was created by La S 711 R 13 to hear and recommend disposition of criminal and civil proceedings azising out of the incarceration of state prisoners La R 13 S 713 A 2 such relief Under CARP after exhausting his administrative remedies ARP with DPSC McKinley should have next filed a petition far judicial review in the district court seeking review of the agency denial of relief Noting that McKinley had s iausted e his available administrative remedies the commissioner recommended that McKinley be given an opportunity to amend his petition to seek judicial review ofthe denial ofhis ARP pursuant to La R 15 See La C art 934 S 1177 P In accordance with the commissioner recommendation the district court s rendered judgment on January 23 2012 dismissing McKinley srequest for habeas corpus relief pursuant to an exception of no cause of action raised on the court s own motion The judgment granted McKinley thirty days to amend his petition to seek judicial review under La R 15 However McKinley declined to S 1177 amend his petition On May 15 2012 the commissioner issued a second report recommending that this matter be dismissed without prejudice since McKinley continued to assert that he was entitled to habeas corpus relief and did not utilize the opportunity given to seek judicial review of DPSC time computation relative to his good time s eligibility McKinley objected the to s commissioner May 15 2012 recommendation reiterating his prayer for habeas corpus reliefand arguing that the district court lacked authority to treat his petition for habeas corpus as a request for judicial review Thereafter by judgment dated June 13 2012 the district court dismissed McKinley petition without prejudice and at his cost due to his failure s to amend his petition to state a cause of action McKinley now appeals complaining that the district court violated his right to due process by failing to rule 3 Louisiana Revised Statutes 15 Dand 15 authorize a dishict court to disxniss a 1178 A 1188 petition that upon screening it determines fails to state a cause of action Additionally La C P art 927 authorizes a district court to notice on its own motion the failure of a petition to state a B cause of action 3 on the merits of his request for habeas corpus relief DISCUSSION Although McKinley spetition is captioned as a petition for a writ of habeas corpus the claim he sets forth actually raises an issue of time computation which must be pursued through CARP CARP is the exclusive remedy by which an inmate may challenge DPSC time computations relative to good time even where an s inmate incorrectly labels his claim as a writ ofhabeas corpus La R 15 S 1171 B La R 15 Ferrington u Louisiana Board ofParole 03 La App S 1177 D 2093 lst Cir 6886 So 455 457 writ denied 04 La 6 904 So 04 25 2d 2555 OS 24 2d 741 Thus McKinley cannot state a cause of action for habeas corpus relief predicated on his good time eligibiliry claim he must pursue this claim through CARP After his ARP complaining of his ineligibility for good time was denied by DPSC the proper remedy was for McKinley to seek judicial review of that denial pursuant to La R 15 However when given the opportunity to amend his S 1177 petition to seek judicial review he refused to do so In fact not only did McKinley fail to amend his petition he objected to the district court considering his petition as a request far judicial review Accordingly after a thorough review of the record of these proceedings we find no error in the judgment of the district court dismissing McKinley claims s without prejudice McKinley spetition complaining of a time computation relative to good time failed to state a cause of action for habeas corpus relief since time computation claims must be pursued through CARP Moreover although given thirty days to do so he expressly declined to amend his petition to seek judicial review pursuant to La R 15 Given the circumstances the district court S 1177 properly dismissed this matter See La C art 934 P 4 CONCLUSION For the above reasons the June 13 2012 judgment of the district court dismissing McKinley petition without prejudice is affirmed All costs of this s appeal are assessed against appellant Otis R McKinley AFFIRMEA 5

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