United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
JOSEPH C. WILKINSON, Jr., 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 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, I have determined that a federal evidentiary hearing is unnecessary. See 28 U.S.C. § 2254(e)(2). For the following reasons, I recommend that the instant petition for habeas corpus relief be DISMISSED WITH PREJUDICE as time-barred or, alternatively, dismissed without prejudice for failure to exhaust state court remedies.
I. STATE COURT PROCEDURAL BACKGROUND
The petitioner, Lesley Hilliard, is incarcerated in the Louisiana Correctional Institute for Women in St. Gabriel, Louisiana. Hilliard was charged on January 31, 2011, by bill of information in St. Tammany Parish with two counts of possession of cocaine.
On April 25, 2011, Hilliard entered a guilty plea to both counts per an agreement reached with the State. As part of that agreement, Hilliard also entered a guilty plea on May 31, 2011 to the multiple offender bill charging her as a second felony offender on count one. The state trial court sentenced her that same day as a second offender to ten (10) years in prison at hard labor on count one without benefit of probation or suspension of sentence and a concurrent five (5) years in prison at hard labor on count two.
Hilliard's conviction became final thirty (30) days later, on June 30, 2011, because she did not appeal or seek reconsideration of her sentence. Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (under federal habeas law, a conviction is final when the state defendant does not timely proceed to the next available step in the state appeal process); see Cousin v. Lensing, 310 F.3d 843, 845 (5th Cir. 2002) (petitioner's guilty pleas became final at the end of the period for filing a notice of appeal under La. Code Crim. P. art. 914).
On August 3, 2011, Hilliard filed a motion to obtain a recommendation from the state trial court that she participate in a drug rehabilitation program available at the prison. The court granted the request and made the recommendation by order dated August 11, 2011.
In connection with a motion to reconsider the sentence filed by Hilliard's counsel on February 27, 2012, the court issued an order on March 21, 2012, that her sentences in this proceeding were to run concurrently with the sentence imposed in a separate criminal matter against her in Case No. 438118. A repetitive motion filed by counsel on March 20, 2012, was denied as moot by the state trial court on March 21, 2012.
Hilliard submitted another motion for clarification of her sentence to the state trial court on September 4, 2012, asking the court to deem her participation in prison sponsored programs to have her placed in a reentry program in lieu of completing her prison term. The court denied the motion without stated reasons on September 11, 2012.
On November 19, 2012, Hilliard submitted to the trial court an application for post-conviction relief in which she alleged that she received ineffective assistance of counsel because her lawyer led her to believe she would not be sentenced as a multiple offender. She also argued that the trial court erred in granting the motion to reconsider filed by her counsel, which led her to believe her sentence was being reduced. The state trial court denied the application on December 11, 2012, finding that the transcripts of the guilty plea and sentencing disproved her claim.
Hilliard sought review of this ruling in the Louisiana First Circuit Court of Appeal, but was denied relief on April 22, 2013, with the appellate court noting that she failed to include the proper documentation for its full review of the trial court's order. The Louisiana Supreme Court then denied Hilliard's untimely writ application in that court on December 2, 2013 without stated reasons.
While this appellate review was pending, Hilliard submitted a motion to modify or amend her sentence and a motion to reconsider her sentence to the state trial court on March 28, 2013. Hilliard argued that the court had failed to determine whether she knowingly waived her rights, whether counsel misled her to believe she would receive a lesser sentence and whether her enrollment in prison self-help programs warranted sentence reduction. The state trial court denied the motion without stated reasons on April 3, 2013. Hilliard refiled the motion to reconsider on April 11, 2013, and the court again denied the motion without stated reasons on April 16, 2013. She did not seek review of these rulings.
Hilliard submitted her next motion to correct her sentence to the state trial court on February 10, 2014, arguing that the March 21, 2012 order that her sentence run concurrently with the sentence in her separate case rendered her sentence illegal. She alleged that she had already completed the sentence in the separate case. The court denied the motion on April 19, 2014, with supplemental reasons issued on April 25, 2014. The record does not reflect that she sought review of this order.
II. FEDERAL HABEAS PETITION
On May 5, 2014, the clerk of this court filed Hilliard's petition for federal habeas corpus relief in which she asserted the following claims: (1) The state trial court erred in granting the motion to reconsider on March 12, 2012, which led petitioner to believe her sentence would be reduced. (2) She received ineffective assistance of counsel at the guilty plea when she was led to believe she would not receive a multiple offender sentence. (3) The state trial court denied her rights to judicial review and access to the courts when it denied her post-conviction application without addressing the merits of her claim of ineffective assistance of counsel on collateral review pursuant to Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012). (4) Counsel was ineffective when he advised petitioner to plead guilty to the multiple offender bill to receive an illegal negotiated sentence and then filed a motion to reconsider in an attempt to correct his error. (5) Counsel was ineffective when he failed properly to present the plea agreement to petitioner.
The State filed an answer and memorandum in opposition to Hilliard's petition arguing that the petition was not timely filed, all of the claims are not exhausted and, ...