United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
SALLY SHUSHAN, District Judge.
This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact 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 record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH PREJUDICE as untimely.
Petitioner, Gary Gant, is a state prisoner incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On December 15, 2003, he pleaded guilty under Louisiana law to attempted first degree murder and attempted armed robbery. He was sentenced on each conviction to a concurrent term of forty years imprisonment.
On December 15, 2005, petitioner, through counsel, filed with the state district court an application for post-conviction relief. That application was denied on December 20, 2005.
On June 16, 2010, a document entitled "Out Time Application for Post-Conviction Relief in Support of Original Uniform Application for Post Conviction Relief" was filed on petitioner's behalf in the state district court. That document was not signed by petitioner; rather, it was signed by a relative, Lula B. Gant. In any event, the court rejected that filing because it was it was not submitted on the state-approved Uniform Application for Post-Conviction Relief.
On August 2, 2010, petitioner, acting pro se, then filed with the state district court a post-conviction application on the required form. That application was denied on October 8, 2010. His related writ applications were likewise denied by the Louisiana Fifth Circuit Court of Appeal on December 6, 2010,  and March 18, 2011,  and by the Louisiana Supreme Court on December 8, 2014.
On December 27, 2014, petitioner filed the instant federal application seeking habeas corpus relief. The state argues that the federal application is untimely. The state is correct.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") generally requires that a petitioner bring his Section 2254 claims within one (1) year of the date on which his 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).
As noted, petitioner pleaded guilty and was sentenced on December 15, 2003. Because he did not file a direct appeal within the thirty days allowed by state law, his state criminal judgment became final no later than January 14, 2004. Accordingly, his period in which to file his federal application for habeas corpus relief therefore commenced on that date and expired one year later on January 14, 2005,  unless that 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, petitioner had no such applications pending before the state courts during the applicable one-year period.
The Court must next consider equitable tolling. The United States Supreme Court has expressly held that the AEDPA's statute of limitations is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (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 649 (internal quotation marks omitted); accord 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 ...