Case Information
*1 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION
KHALFANI M. KAMAU CIVIL ACTION NO. 09-1439-P VERSUS JUDGE HICKS WARDEN MAGISTRATE JUDGE HORNSBY
REPORT AND RECOMMENDATION
In accordance with the standing order of this Court, this matter was referred to the undersigned Magistrate Judge for review, report and recommendation.
STATEM ENT OF CLAIM
Before the Court is a petition for writ of habeas corpus filed by pro se petitioner Khalfani M. Kamau (“Petitioner”), pursuant to 28 U.S.C. §2254. This petition was received and filed in this Court on August 10, 2009. Petitioner is currently incarcerated at the Avoyelles Correctional Center in Cottonport, Louisiana. He challenges his state court conviction and sentence. He names the W arden as respondent.
On October 25, 2007, Petitioner was convicted of one count of possession of a controlled dangerous substance in Louisiana’s Twenty-Sixth Judicial District Court, Parish of Bossier. Subsequently, he was sentenced to 20 years imprisonment at hard labor with all but 15 years suspended and 10 years without benefit of parole, probation, or suspension of sentence.
In support of this petition, Petitioner alleges (1) he received ineffective assistance of appellate counsel and (2) he was denied due process during the habitual offender proceedings.
For the reasons stated below, Petitioner's application for habeas relief should be dismissed for failure to exhaust state court remedies.
LAW AND ANALYSIS
Habeas corpus relief is available to a person who is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. However, the right to pursue habeas relief in federal court is not unqualified. It is well settled that a petitioner seeking federal habeas corpus relief cannot collaterally attack his state court conviction in federal court until he has exhausted all available state remedies. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198 (1982); Minor v. Lucas, 697 F.2d 697 (5th Cir. 1983).
This requirement is not a jurisdictional bar but a procedural one erected in the interest of comity providing state courts first opportunity to pass upon and correct alleged constitutional violations. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, (1971); Rose, 455 U.S. at 509, 102 S. Ct. at 1198. Moreover, in the event that the record or the habeas corpus petition, on its face, reveals that the petitioner has not complied with the exhaustion requirement, a United States district court is expressly authorized to dismiss the claim. See Resendez v. McKaskle, 722 F.2d 227, 231 (5th Cir. 1984).
Petitioner admits that he has not exhausted all available state court remedies prior to filing his petition in this Court. [Doc. 1]. Petitioner currently has a writ of review pending with the Supreme Court of Louisiana.
Accordingly;
IT IS RECOMMENDED that Petitioner's application for writ of habeas corpus be DISMISSED WITHOUT PREJUDICE. OBJECTIONS
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties aggrieved by this recommendation have fourteen (14) days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court, unless an extension of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party’s objections within seven (7) days after being served with a copy thereof. Counsel are directed to furnish a courtesy copy of any objections or responses to the District Judge at the time of filing.
A party’s failure to file written objections to the proposed findings, conclusions and recommendation set forth above, within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the factual findings and legal conclusions that were accepted by the district court and not objected to by the aforementioned party. See Douglas v. U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc). THUS DONE AND SIGNED , in chambers, in Shreveport, Louisiana, this 10th day of December, 2009.