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Gage v. Warden

United States District Court, W.D. Louisiana, Shreveport Division

January 26, 2015

ROBERT EARL GAGE
v.
WARDEN

REPORT AND RECOMMENDATION

MARK L. HORNSBY, Magistrate Judge.

In accordance with the standing order of this court, this matter was referred to the undersigned Magistrate Judge for review, report and recommendation.

STATEMENT OF CLAIM

Before the court is a petition for writ of habeas corpus filed by pro se petitioner Robert Earl Gage ("Petitioner"), pursuant to 28 U.S.C. §2254. This petition was received and filed in this court on January 4, 2012. Petitioner was incarcerated in the Claiborne Parish Detention Center when he filed this petition. Petitioner challenges his state court conviction and sentence. He names the Warden as respondent.

Plaintiff states that in March of 2006, he was convicted of DWI - fourth offense, in Louisiana's First Judicial District Court, Parish of Caddo. He states he was sentenced to 10 years imprisonment at hard labor.

In support of this petition, Petitioner alleges (1) his prior conviction for DWI-second offense was unlawfully induced and not voluntarily entered with understanding of the nature of the charge and the consequences of the plea, (2) his privilege against selfincrimination was violated during his DWI- second offense conviction, (3) he received ineffective assistance of counsel during his DWI- second offense proceedings and his DWIfourth offense proceedings, (4) the evidence was insufficient to support his conviction and the amended bill of information was deficient, (5) the trial court failed to suppress the videotape and his counsel was ineffective because he joined in the showing of the videotape to the jury, (6) the jury instructions were incorrect and insufficient and his counsel was ineffective because he failed to object to the jury instructions, (7) the State made highly prejudicial arguments during its rebuttal which were not supported by the evidence and his counsel was ineffective because he failed to object to the arguments, (8) his sentence is illegal, and (9) his counsel was ineffective at all stages of the proceedings.

For the reasons that follow, Petitioner is not entitled to the relief requested and his petition should be dismissed because it is barred by the one-year limitation period of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. Section 2244.

LAW AND ANALYSIS

On April 24, 1996, the AEDPA amended 28 U.S.C. Section 2244 to provide for a "1-year period of limitation [that] shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court." The limitation period runs from the latest of four possible dates, as follows[1]:

1. the date "the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review";

2. the date "the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed if the applicant was prevented from filing by such State action";

3. the date that "the constitutional right asserted was initially recognized by the Supreme Court, " if it is newly recognized and made retroactively applicable; or

4. the date "the factual predicate of the claim... presented could have been discovered through... due diligence." 28 U.S.C. § 2244 (d)(1).

Therefore, in order for a petition to be considered timely, it must be filed within one year from the most recent date provided by subsections (1) through (4). In the case where a petitioner makes claims that do not implicate subsections (2) through (4), the court must determine when the petitioner's conviction became final on direct review and then toll the ...


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