United States District Court, E.D. Louisiana
January 8, 2015
JAMES ROGERS, WARDEN, Section
REPORT AND RECOMMENDATION
MICHAEL B. NORTH, Magistrate Judge.
This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, 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 in the United States District Courts. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). For the following reasons, IT IS RECOMMENDED that the petition for habeas corpus relief be DISMISSED WITH PREJUDICE as untimely.
I. Procedural history
Petitioner, Shawna Farley, is a state prisoner incarcerated at the Louisiana Correctional Institute for Women in St. Gabriel, Louisiana. On December 18, 2001, she pleaded guilty to two counts of distribution of cocaine in violation of Louisiana Revised Statute 40:967(A) and was sentenced on each count to a concurrent term of fifteen years imprisonment. On that same date, she also pleaded guilty to being a multiple offender and was resentenced on count one to a concurrent term of fifteen years imprisonment at hard labor without benefit of probation or suspension of sentence pursuant to Louisiana Revised Statute 15:529.1. She did not appeal her conviction or sentence.
On December 4, 2003, Farley filed a motion to correct an illegal sentence with the state district court. On December 9, 2003, the district court ordered Farley to refile the motion within thirty days of receipt of her requested Boykin transcripts. On January 5, 2004, Farley refiled her motion to correct an illegal sentence. The court denied that motion on January 9, 2004. On April 22, 2004, Farley filed a motion to amend her sentence with the state district court. That motion was denied on May 7, 2004. Her related supervisory writ application to the Louisiana Fifth Circuit Court of Appeal was denied on June 23, 2004. Her writ application to the Louisiana Supreme Court was denied pursuant to Louisiana Code of Criminal Procedure article 930.8 as untimely and Louisiana Code of Criminal Procedure article 930.3 as procedurally barred on May 20, 2005.
On or about December 20, 2005, Farley filed a third motion to correct an illegal sentence in the state district court. That motion was denied on February 3, 2006. A fourth motion to correct an illegal sentence, similar to her previous motion, was filed in the state district court on or about April 7, 2006. The motion was denied as repetitive on April 26, 2006.
On or about June 7, 2008, Farley filed her second motion to amend the sentence in the state district court. On or about March 9, 2009, Farley filed a third motion to reduce or amend her sentence. The district court denied that motion on March 19, 2009. On or about September 21, 2009, Farley filed an ex parte motion for lack of subject matter jurisdiction in the state district court. That motion was denied on September 28, 2009.
About this time, Farley also had a writ application pending with the Louisiana Supreme Court, which was transferred to the Louisiana Fifth Circuit Court of Appeal for consideration pursuant to the procedures outlined in that Court's en banc resolution of September 9, 2008. State v. Cordero, 08-1717 (La. 10/3/08), 993 So.2d 203. Upon remand, the Louisiana Fifth Circuit reconsidered the two writ applications previously filed by Farley (Nos. 02-497 and 04-695) and found no error in its prior rulings. The Louisiana Supreme Court denied Farley's related writ application on March 4, 2011.
On February 20, 2014, Farley filed the instant federal application for habeas corpus relief. The State contends the petition was not timely filed and that the claims are unexhausted and procedurally defaulted. The Court pretermits consideration of the State's latter asserted bars to federal habeas review because the record supports the State's assertion that the petition, in any event, is untimely.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") generally requires that a petitioner bring her Section 2254 claims within one (1) year of the date on which her underlying criminal judgment becomes "final." On that point, the United States Fifth Circuit Court of Appeals has explained:
The statute of limitations for bringing a federal habeas petition challenging a state conviction begins to run on "the date on which the [state] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). When a habeas petitioner has pursued relief on direct appeal through his state's highest court, his conviction becomes final ninety days after the highest court's judgment is entered, upon the expiration of time for filing an application for writ of certiorari with the United States Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir.2003). However, "[i]f the defendant stops the appeal process before that point, "... "the conviction becomes final when the time for seeking further direct review in the state court expires." Id. at 694; see also Foreman v. Dretke, 383 F.3d 336, 338 (5th Cir.2004) (Section 2244(d)(1)(A) gives alternative routes for finalizing a conviction: either direct review is completed or the time to pursue direct review expires).
Although federal, not state, law determines when a judgment is final for federal habeas purposes, a necessary part of the finality inquiry is determining whether the petitioner is still able to seek further direct review. See Foreman, 383 F.3d at 338-39. As a result, this court looks to state law in determining how long a prisoner has to file a direct appeal. See Causey v. Cain, 450 F.3d 601, 606 (5th Cir.2006); Roberts, 319 F.3d at 693.
Butler v. Cain, 533 F.3d 314, 317 (5th Cir.2008).
Farley pleaded guilty and was sentenced on December 18, 2001. Her state criminal judgment then became final for AEDPA purposes no later than December 27, 2001, when she failed to file an appeal within the time allowed by state law. As a result, her federal limitations period therefore commenced on that date and expired one year later on December 27, 2002, unless the deadline was extended through tolling.
The Court first considers statutory tolling. Regarding the statute of limitations, the AEDPA expressly provides: "The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). However, Farley had no such applications pending before the state courts during the applicable one-year period. While it appears from the record that Farley filed an application during that period requesting documents,  it is clear that applications seeking documents are not considered "application[s] for State post-conviction or other collateral review" for tolling purposes because they are preliminary in nature and do not directly call into question the validity of a petitioner's conviction or sentence. Higginbotham v. Tanner, Civ. Action No. 10-1130, 2011 WL 3268128, at *1 (E.D. La. July 29, 2011); Parker v. Cain, Civ. Action No. 02-0250, 2002 WL 922383, at *2 n.22 (E.D. La. May 1, 2002), certificate of appealability denied, No. 03-30107 (5th Cir. June 23, 2003); Boyd v. Ward, Civ. Action No. 01-493, 2001 WL 533221, at *4 (E.D.La. May 15, 2001), certificate of appealability denied, No. 01-30651 (5th Cir. Aug. 22, 2001). Because such an application did not trigger statutory tolling, and because Farley had no other state applications pending at any time during the one-year limitations period, she clearly is not entitled to any tolling credit pursuant to § 2244(d)(2). Further, although she filed numerous state post-conviction motions after December 27, 2002, these motions filed after the expiration of the federal statute of limitations have no bearing on the timeliness of her federal application. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir.2000); Magee v. Cain, Civ. Action No. 99-3867, 2000 WL 1023423, at *4, aff'd, 253 F.3d 702 (5th Cir.2001); Williams v. Cain, Civ. Action No. 00-536, 2000 WL 863132, at *2 (E.D. La. June 27, 2000). Simply put, once the federal limitations period expired, "[t]here was nothing to toll."
Butler v. Cain, 533 F.3d at 318.
The Court next considers whether equitable tolling is warranted. The United States Supreme Court has expressly held that the AEDPA's statute of limitations is subject to equitable tolling. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). However, "a petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Id. at 2562 (internal quotation marks omitted); see also Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998) (holding that the AEDPA's statute of limitations can be equitably tolled "in rare and exceptional circumstances"). A petitioner bears the burden of proof to establish entitlement to equitable tolling. Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir.2002).
To the extent Farley may argue that her federal application should be considered timely because, on September 14, 2008, she filed the state petition which challenged the procedures the Louisiana Fifth Circuit Court of Appeal used to rule on pro se post-conviction writ applications, her contention does not support equitable tolling. As Farley asserts, in 2007, it came to light that the Louisiana Fifth Circuit Court of Appeal had for many years assigned a single judge to review all pro se post-conviction writ applications, despite the state constitutional requirement that the courts of appeal "sit in panels of at least three judges." See State v. Cordero, 993 So.2d 203, 204-05 (La.2008); La. Const. art. V, § 8(A). As a result, in Cordero, the Louisiana Supreme Court decided that writ applications alleging this deficiency during the relevant period would be remanded to the Louisiana Fifth Circuit for reconsideration and proper review. This occurred in Farley's case. However, for prisoners such as Farley, whose conviction became final long before the irregularity was discovered, the additional review accorded pursuant to Cordero is not a basis for either statutory or equitable tolling. See, e.g., Ruffin v. Cain, Civ. Action No. 13-481, 2013 WL 5506140, at *8-9 (E.D. La. Sep. 30, 2013); Thomas v. Tanner, Civ. Action No. 10-1795, 2011 WL 4344605, at *4-8 (E.D.La. Aug. 23, 2011), adopted, 2011 WL 4345076 (E.D. La. Sept. 15, 2011); see also Nellon v. Cain, Civ. Action No. 10-4430, 2012 WL 1142539, at *5 (E.D. La. Jan. 25, 2012) ("[T]he additional review petitioner has been accorded as a result of Cordero is of no moment, because that review did not reset' his federal statute of limitations. Where, as here, a petitioner's federal limitations period expired prior to Cordero, the additional review accorded as a result of the Cordero procedure is simply irrelevant."), adopted, 2012 WL 1089232 (E.D. La. Mar. 30, 2012).
Because Farley is entitled to neither statutory tolling nor equitable tolling, her federal application for habeas corpus relief had to be filed on or before December 27, 2002. Her federal application was not filed until February 20, 2014. It is therefore untimely.
Furthermore, out of an abundance of caution, the Court agrees with the State's position that Farley would not be entitled to federal habeas corpus relief in any event. Her sole claim in the federal application is that her rights were violated by the improper procedures used by the Louisiana Fifth Circuit Court of Appeal to review her post-conviction application. However, that claim is not even cognizable in this proceeding, because federal habeas corpus relief cannot be granted to remedy an error in state post-conviction proceedings. As the United States Fifth Circuit Court of Appeals has explained:
[O]ur circuit precedent makes abundantly clear that errors in state postconviction proceedings will not, in and of themselves, entitle a petitioner to federal habeas relief. See, e.g., Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir.1997) ("[I]nfirmities in state habeas proceedings do not constitute grounds for relief in federal court."); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir.1995) ("An attack on a state habeas proceeding does not entitle the petitioner to habeas relief in respect to his conviction, as it is an attack on a proceeding collateral to the detention and not the detention itself.") (internal quotations omitted). Rather, we must find constitutional error at the trial or direct review level in order to issue the writ.
Morris v. Cain, 186 F.3d 581, 585 n. 6 (5th Cir.1999); see also Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir.1992); Anthony v. Cain, Civ. Action No. 07-3223, 2009 WL 3564827, at *23 (E.D. La. Oct. 29, 2009); Baham v. Allen Correctional Center, Civ. Action No. 07-4075, 2009 WL 3148757, at *3 (E.D. La. Sept. 30, 2009); Davis v. Cain, Civ. Action No. 07-6389, 2008 WL 5191912, at *6 (E.D. La. Dec. 11, 2008). The Fifth Circuit consistently follows this rule and has emphasized:
We, as a federal appeals court entertaining a federal habeas corpus application, are without jurisdiction to review the constitutionality of [the petitioner's] state postconviction proceedings. Indeed, we are barred from doing so by our "no state habeas infirmities" rule.... [O]ur hands are tied by the AEDPA, preventing our review of [the petitioner's] attack on his Louisiana postconviction proceedings, so we dutifully dismiss his claim.
Kinsel v. Cain, 647 F.3d 265, 273-74 (5th Cir.) (footnote omitted), cert. denied, 132 S.Ct. 854 (2011). As a result, a Louisiana prisoner's Cordero claim simply is not cognizable in a federal habeas corpus proceeding. Wilford v. Cain, Civ. Action No. 10-2163, 2011 WL 6819035 (E.D.La. Dec. 28, 2011); Thomas, 2011 WL
For the foregoing reasons, IT IS RECOMMENDED that Farley's application for federal habeas corpus relief be DISMISSED WITH PREJUDICE as untimely.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation 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 unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. 28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir.1996) (en banc).