United States District Court, E.D. Louisiana
NANNETTE JOLIVETTE BROWN, District Judge.
Before the Court are Petitioner Larry Moses's ("Petitioner") objections to the May 21, 2014 Report and Recommendation of the United States Magistrate Judge assigned to the case. Petitioner, a state prisoner incarcerated at the Louisiana State Penitentiary, Angola, Louisiana, filed a petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. The Magistrate Judge recommended that the matter be dismissed with prejudice as time-barred. Petitioner objects, arguing he is entitled to equitable tolling. After reviewing the petition, the Magistrate Judge's Report and Recommendation, the objections, the record and the applicable law, the Court will overrule Petitioner's objections, adopt the Magistrate Judge's recommendation and dismiss this action with prejudice.
A. Factual Background
On August 18, 1994, Petitioner was indicted for two counts of first degree murder. On October 31, 1995, a jury in the Orleans Parish Criminal District Court found Petitioner guilty as charged. On November 20, 1995, the court sentenced Petitioner to life imprisonment as to each count without benefit of parole, probation or suspension of sentence.
On October 1, 1997, the Louisiana Fourth Circuit Court of Appeal affirmed Petitioner's convictions and sentences. The Louisiana Supreme Court denied Petitioner's writ application on May 8, 1998. Petitioner's conviction became final ninety days later on August 6, 1998, when he did not file a writ application with the United States Supreme Court.
On January 26, 2000, Petitioner's counsel filed an application for post-conviction relief with the state district court. On October 12, 2001, Petitioner filed a writ of mandamus requesting an order from the court of appeal directing the district court to rule on his post-conviction relief application, which the court of appeal denied on November 21, 2001. On or about March 22, 2002, counsel for Petitioner filed another application for post-conviction relief in the state district court,  which the state district court denied on July 26, 2002. On December 13, 2002, the court of appeal denied Petitioner's related writ application, finding the application untimely and repetitive. On November 7, 2003, the Louisiana Supreme Court denied Petitioner's related writ application without stated reasons.
On November 4, 2004, Petitioner filed a third application for post-conviction relief with the state district court. Petitioner filed another writ of mandamus requesting an order from the court of appeal directing the district court to rule on his post-conviction relief application, which the court of appeal denied on March 1, 2005. On February 3, 2006, the Louisiana Supreme Court denied Petitioner's related writ application as untimely and repetitive.
On March 19, 2013, Petitioner filed the instant petition for federal habeas relief with this Court. On July 29, 2013, the State filed a response, arguing that Petitioner's application is untimely. Petitioner conceded that his application was untimely filed, but argued that he was entitled to equitable tolling because of his retained counsel's ineffective assistance on state postconviction review.
B. Report and Recommendation
On May 21, 2014, the Magistrate Judge recommended that Petitioner's claim be dismissed with prejudice as time-barred. The Magistrate Judge found that Petitioner failed to file his petition within the time limitations period set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which establishes a one-year statute of limitations for the filing of habeas corpus applications after the underlying judgment becomes "final." The Magistrate Judge found that Petitioner's judgement became final on August 6, 1998, when the time elapsed for filing a writ of certiorari with the United States Supreme Court.
The Magistrate Judge determined that Petitioner was not entitled to statutory tolling under 28 U.S.C. § 2244(d)(2), which provides statutory tolling for "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." The Magistrate Judge noted that Petitioner did not file a post-conviction application with the state district court until January 26, 2000, more than five months after the one-year limitations period had expired. Accordingly, the Magistrate Judge found statutory tolling inapplicable.
The Magistrate Judge also considered Petitioner's entitlement to equitable tolling. Petitioner argued his attorney, who was hired in June 1998 to represent him in state collateral review proceedings, did not file his state post-conviction application timely. Petitioner presented three letters he sent to his attorney allegedly evidencing his concern as to the filing of his writ application. The Magistrate Judge found that only one of those letters, dated October 27, 1999, addressed the limitations period. He noted that this letter was sent to the attorney after the federal limitations period had run. He noted that counsel forwarded Petitioner the writ application on January 5, 2000, within two months of Petitioner's request, which the Magistrate Judge opined suggested that his attorney did not ignore the concerns raised by Petitioner. However, the Magistrate Judge found the manner in which counsel responded to Petitioner's concerns of no moment because those concerns were not raised for the first time until after the federal limitations period had already run.
Petitioner also argued that his attorney made false and misleading assurances to both his sister and father. The Magistrate Judge found that Petitioner failed to provide any objective evidence to show that his family members contacted the attorney or that his attorney made the purported assurances. Further, the Magistrate Judge found that even if Petitioner had satisfied the "extraordinary circumstances" prong, he had not established the requisite diligence in pursuing federal habeas relief. The Magistrate Judge found that "even if petitioner was reasonably diligent in his attempts to have his attorney file his state post-conviction application so as to toll the limitations period, he offers no explanation for his failure to file his federal habeas application within the one-year deadline." The Magistrate Judge noted that Petitioner's October 1999 letter detailed his knowledge of the following: his application for a writ of certiorari had been denied by the Louisiana Supreme Court, his conviction had become final, the AEDPA statute of limitations and one-year deadline. However, Petitioner waited over 13 years from the date his conviction became final to file his federal habeas petition. Finally, the Magistrate Judge found that even if the limitations period had been tolled during the entire duration of the state post-conviction proceedings, no state court matter was pending after February 3, 2006, seven years before ...