United States District Court, W.D. Louisiana
KENRARD D. BROUSSARD LA. DOC #387088,
WARDEN NATHAN CAIN, SECTION P
SUPPLEMENTAL REPORT AND RECOMMENDATION
C. MICHAEL HILL, Magistrate Judge.
In light of petitioner's objections to the undersigned's original Report and Recommendation related to his filings in the Louisiana Supreme Court [rec. doc. 10], Judge Haik remanded the Report and Recommendation to the undersigned for further review. [rec. doc. 12].
On April 17, 2013, the Louisiana Third Circuit Court of Appeal affirmed petitioner's conviction and amended his 18 year sentence to reflect that only the first 10 years be served without benefits. State v. Broussard, 2013 WL 1628722, 110 So.3d 731 (La.App. 3rd Cir. 2013). Notice of Judgment was mailed on April 17, 2013, the date that Judgment was rendered. [rec. doc. 7, pg. 49]. Therefore, under Louisiana Supreme Court Rule X, §5(a), petitioner's writ application to the Louisiana Supreme Court was due thirty days thereafter, that is, on or before May 17, 2013.
In his objections, petitioner argues that he timely filed an original writ application in the Louisiana Supreme Court because he sent "a letter" to the Court on May 17, 2013, which resulted in the Court's issuance of a responsive letter dated May 21, 2013, assigning a docket number to petitioner's case. He thereafter filed his writ application by mail on August 15, 2013.
Because petitioner did not originally provide a copy of the May 21, 2013 letter or the Louisiana Supreme Court's response thereto but, rather, provided only a copy of his August 15, 2013 writ application to this Court for review [rec. doc. 7, pgs. 32-55], the undersigned ordered the Clerk of the Louisiana Supreme Court to provide copies of the entire record of the matter docketed as State of Louisiana vs. Kenrard D. Broussard, No. 2013-KO-1142. The Clerk of the Louisiana Supreme Court responded to the undersigned's Order. [rec. doc. 14].
Review of the documents received from the Clerk of the Louisiana Supreme Court reveal that petitioner filed a Motion For Extension of Time dated May 16, 2013, which was post-marked May 17, 2013 and received by the Clerk of the Louisiana Supreme Court on May 21, 2013. By this Motion, Broussard requested an extension of time within which to file his Louisiana Supreme Court writ application seeking review of the Third Circuit's ruling on petitioner's direct appeal, which Broussard acknowledges in his Motion was mailed to the parties on April 17, 2013. Contrary to the allegations in petitioner's objection, no reason for the grant of an extension of time was given in his Motion. [rec. doc. 14, pg. 2-3].
In response, the Clerk mailed petitioner the letter dated May 21, 2013 that petitioner presented to this Court by objection, which merely advised that petitioner's "pleadings" post-marked May 17, 2013, which were received and filed on May 21, 2013, had been assigned Docket Number 2013-KO-1142. [ See rec. doc. 10, pg. 8].
The Louisiana Supreme Court never granted petitioner's Motion for Extension of Time. This fact was acknowledged by Broussard in the cover letter to his actual writ application dated August 15, 2013, wherein Broussard states that "a motion for extension is still pending... I pray that the motion for extension is granted and the application accepted." [rec. doc. 14, pg. 50].
As the undersigned previously found, petitioner did not file his actual writ application to the Louisiana Supreme Court until August 15, 2013, the date petitioner certified that his writ application was mailed to the Clerk of the Louisiana Supreme Court by placing a copy of same in the prison mailbox along with sufficient pre-paid certified first-class postage, nearly three months after the expiration of the filing deadline. [rec. doc. 7, pg. 46; rec. doc. 14, pg. 40]. The Louisiana Supreme Court denied petitioner's request for discretionary review on November 22, 2013 without comment. State v. Broussard, 126 So.3d 477 (La. 2013).
The instant federal petition was not filed until February 21, 2014.
LAW AND ANALYSIS
In light of the above, it is clear that the undersigned's prior analysis was correct. Petitioner's claims are technically defaulted. Petitioner did not present the substance of his federal Constitutional claims in a procedurally and timely manner to the Louisiana Supreme Court.
Louisiana Supreme Court Rule X, §5(a) provides in pertinent part as follows: "An application seeking to review a judgment of the court of appeal... after an appeal to that court... shall be made within thirty days of the mailing of the notice of the original judgment of the court of appeal... No extension of time therefor will be granted." (emphasis added).
Under Louisiana Supreme Court Rule X, §5(a), petitioner had a period of 30-days following the April 17, 2013 mailing of the Third Circuit's Notice of Judgment within which to file his writ application in the Louisiana Supreme Court. Rule X, § 5(a) is a procedural requirement governing the time of filing. See Williams v. Cain, 217 F.3d 303, 308 (5th Cir. 2000); See also Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (holding that "time limits, no matter their form, are filing' conditions" and ...