United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
SALLY SHUSHAN, Magistrate 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, Dominick Villafranco, is a state prisoner incarcerated at the David Wade Correctional Center in Homer, Louisiana. On December 13, 2012, he pleaded guilty under Louisiana law to theft of a motor vehicle, unauthorized use of a motor vehicle, and illegal possession of a stolen automobile. He was sentenced on each conviction to a concurrent term of five years imprisonment. He then pleaded guilty to being a second offender and was resentenced as such on the theft charge to a term of five years imprisonment. He did not appeal his convictions or sentences.
On April 8, 2013, petitioner filed a post-conviction application with the state district court. That application was denied on May 9, 2013. Apparently unaware of the district court's ruling, petitioner filed an "Application for Writ of Mandamus" with the Louisiana Fourth Circuit Court of Appeal on or about June 1, 2013. The Court of Appeal denied relief, holding: "The record before the court reflects that the district court on May 9, 2013, denied relator's application for postconviction relief."
On June 25, 2013, petitioner filed with the Louisiana Fourth Circuit Court of Appeal a "Motion to Introduce Supplemental Brief - Newly Obtained Evidence." On July 9, 2013, the Court of Appeal granted that application for "the sole purpose of transferring the... motion to introduce a supplemental brief to the district court for consideration, if it has not already done so, within sixty (60) days of this order." The district court then again denied relief on August 7, 2013. Petitioner's related writ applications were likewise denied by the Louisiana Fourth Circuit Court of Appeal on November 18, 2013,  and by the Louisiana Supreme Court on September 19, 2014.
On or after October 2, 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 13, 2012. 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, 2013. Accordingly, his period in which to file his federal application for habeas corpus relief therefore commenced on that date and expired one year later, 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).
After eighty-three (83) days elapsed, petitioner tolled the federal limitations period by filing his post-conviction application with the state district court on April 8, 2013. Once that application was denied on May 9, 2013, he had until June 10, 2013, to seek review by the Louisiana Fourth Circuit Court of Appeal. When he failed to seek such review, his post-conviction application ceased to be pending on that date and the federal limitations period resumed. See Grillette v. Warden, Winn Correctional Center, 372 F.3d 765, 769-71 (5th Cir. 2004) (a state application ceases to be pending when the time for supervisory review expires).
Petitioner's next filing was the "Application for Writ of Mandamus" filed with the Louisiana Fourth Circuit Court of Appeal on or about June 1, 2013. However, an application for a writ of mandamus does not toll the federal ...