United States District Court, M.D. Louisiana
MAGISTRATE JUDGE'S REPORT
STEPHEN C. RIEDLINGER, Magistrate Judge.
Before the court on the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by Rickey Hills.
For the reasons which follow, the petition should be denied.
I. Procedural History
Rickey Hills was found guilty of one count of possession of cocaine in the Nineteenth Judicial District Court for East Baton Rouge Parish, Louisiana on March 24, 2009. Petitioner was adjudicated a fifth felony habitual offender and was sentenced to a term of 54 years imprisonment at hard labor without the benefit of probation or suspension of sentence.
On direct appeal the petitioner asserted the following assignments of error:
1. His habitual offender adjudication was invalid.
2. He received an excessive sentence.
The Louisiana First Circuit Court of Appeal affirmed the petitioner's conviction, habitual offender adjudication, and sentence of March 3, 2010. State of Louisiana v. Rickey Earl Hills, 2010-0910 (La.App. 1st Cir. 10/29/10), 56 So.3d 464 (Table).
Petitioner sought review in the Louisiana Supreme Court. The certificate of service is dated November 29, 2010, the envelope in which it was mailed is postmarked December 1, 2010, and it was filed on December 6, 2010. The Louisiana Supreme Court denied review on October 14, 2011. State ex rel. Ricky Earl Hills v. State of Louisiana, 2010-2688 (La. 10/14/11), 74 So.3d 1189.
Petitioner signed an application for post-conviction relief ("PCRA") on September 4, 2012, and it was filed on September 25, 2012.
Petitioner asserted the following grounds for relief:
1. He was entitled to a free copy of the entire state court record in order to adequately present his PCRA.
2. He was denied effective assistance of counsel when trial counsel failed to prepare an adequate defense.
3. He was denied effective assistance of counsel when trial counsel failed to object to the introduction of drug paraphernalia.
4. He was subjected to an illegal search and seizure in violation of his Fourth Amendment rights.
5. The State failed to prove he was a third felony offender.
6. His right to a fair trial was violated when potential jurors were excluded because of their race.
On January 25, 2013, the trial court denied the petitioner's PCRA.
Petitioner signed his application for supervisory review on February 21, 2013, and presumably it was filed in the Louisiana First Circuit Court of Appeal shortly thereafter. The Louisiana First Circuit Court of Appeal denied review on May 30, 2013. State of Louisiana v. Rickey Hills, 2013-0302 (La.App. 1st Cir. 5/20/13).
On June 3, 2013, the petitioner sought review in the Louisiana Supreme Court. The Louisiana Supreme Court denied review on November 22, 2013. State ex rel. Rickey Hills v. State of Louisiana, 2013-1363 (La. 11/22/13), 126 So.3d 482. Petitioner signed his federal habeas corpus application on January 6, 2014, and it was electronically filed on January 7, 2014. Petitioner asserted the following grounds for relief:
Ground One: His sentence was excessive in violation of the Eighth Amendment.
Ground Two: There was insufficient evidence to support his habitual offender adjudication.
Ground Three: He was denied free copy of the entire state court record in order to adequately present his PCRA.
Ground Four: He was denied effective assistance of counsel when trial counsel failed to prepare an adequate defense.
Ground Five: He was denied effective assistance of counsel when trial counsel failed to object to the introduction of drug paraphernalia.
Ground Six: He was subjected to an illegal search and seizure in violation of his Fourth Amendment rights.
Ground Seven: His right to a fair trial was violated when potential jurors were excluded because of their race.
II. Applicable Law and Analysis
In its Answer to Petition For Writ of Habeas Corpus and Memorandum in Opposition to Petition for Writ of Habeas Corpus the State argued that the petition is untimely. Specifically, the State argued that the petitioner did not file a timely application for review with the Louisiana Supreme Court. The State argued that La.S.Ct. Rule X, Section 5 requires all applications for writs of review to be filed within 30 days of the mailing of the judgment. The State argued that the petitioner did not submit his pleadings to prison officials within 30 days after October 29, 2010. The State argued that the petitioner had until November 28, 2010 to seek review. However, this argument is unpersuasive. The statutory tolling ended on November 28, 2010, which was a Sunday. Thus, the time period was extended to the next business day for the court, which was Monday, November 29, 2010.
The State argued that although the certificate of service is dated November 29, 2010, the post-mark on the envelope established that the pleading was not mailed until December 1, 2010. The State argued that the writ application was filed on December 1, 2010, and therefore was not timely filed for purposes of § 2254(d)(2) and did not toll the AEDPA limitations period.
Under the prison mailbox rule, a prisoner's pleading is deemed to have been filed on the date that the pro se prisoner submits the pleading to prison authorities for mailing. Stoot v. Cain, 570 F.3d 669, 671 (5th Cir. 2009); Causey v. Cain, 450 F.3d 601, 604 (5th Cir. 2006) (citing Houston v. Lack, 487 U.S. 266, 270-71, 108 S.Ct. 2379 (1988).
Although the certificate of service is dated November 29, this does not necessarily mean that the petitioner gave it to a prison officer on that date. Therefore, the parties were ordered to submit affidavits, documents, or other evidence to establish when the petitioner delivered his writ application a prison officer.
Petitioner responded by filing his affidavit in which he stated that he "did mail a Writ of Certiorari for Direct Appeal claims in case no. 10-08-0427 through the Classification Department's Mailing System at the Louisiana State Penitentiary on/or about November 29, 2010." Petitioner further stated that he placed it ...