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Washington v. Dove

United States District Court, E.D. Louisiana

March 30, 2015

TYRONE WASHINGTON
v.
DEAN DOVE, WARDEN, SECTION

REPORT AND RECOMMENDATION

JOSEPH C. WILKINSON, Jr., Magistrate Judge.

This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing, if necessary, and to submit proposed findings 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. Upon review of the entire record, I have determined that a federal evidentiary hearing is unnecessary. See 28 U.S.C. § 2254(e)(2).[1] For the following reasons, I recommend that the instant petition for habeas corpus relief be DISMISSED WITH PREJUDICE as time-barred.

I. FACTUAL AND PROCEDURAL BACKGROUND

The petitioner, Tyrone Washington, is incarcerated in the Natchitoches Parish Detention Center in Natchitoches, Louisiana.[2] On September 6, 2002, Washington was charged in a Jefferson Parish bill of information with thirteen (13) counts of armed robbery, one count of conspiracy to commit armed robbery and one count of battery on a police officer.[3] Washington initially plead not guilty to the charges.[4]

After being found competent to proceed, Washington withdrew his former plea and plead guilty to the charges on June 17, 2003.[5] Pursuant to the plea agreement, the state trial court sentenced Washington to concurrent prison terms of forty-five (45) years on each of the armed robbery counts, thirty (30) years on the conspiracy count and five years on the battery on a police officer count, with each sentence to be served without benefit of parole, probation or suspension of sentence.[6] The court later denied Washington's motion to reconsider the sentence on July 11, 2003.[7]

Washington's conviction became final thirty (30) days later, on Monday, August 11, 2003, [8] because he did not pursue a direct appeal or further review of his sentence. Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (under federal habeas law, a conviction is final when the state defendant does not timely proceed to the next available step in the state appeal process); see Cousin v. Lensing, 310 F.3d 843, 845 (5th Cir. 2002) (petitioner's guilty pleas became final at the end of the period for filing a notice of appeal under La. Code Crim. P. art. 914[9]).

On June 16, 2004, Washington signed and submitted an application for postconviction relief to the state trial court in which he asserted the following grounds for relief:[10] (1) His guilty plea was not knowing, intelligent and voluntary and was the product of coercion and without regard for his mental incompetence. (2) Counsel's affirmation that the plea was knowing, intelligent and voluntary was the product of coercion. (3) He was provided ineffective assistance of counsel. (4) The sentences imposed the same day as the plea were void because defendant did not waive legal delays. On June 24, 2004, the state trial court denied relief finding no merit in the claims.[11]

The Louisiana Fifth Circuit denied Washington's application for a writ of review on July 28, 2004, finding no error in the trial court's ruling.[12] The Louisiana Supreme Court denied Washington's related writ application without stated reasons on May 20, 2005.[13]

More than three years later, on July 9, 2008, Washington submitted a writ application to the Louisiana Supreme Court seeking reconsideration of his prior pro se writ application. State v. Cordero, 993 So.2d 203 (La. 2008).[14] Per the Cordero procedures, the writ application was transferred to the Louisiana Fifth Circuit on October 10, 2008, where it was docketed for reconsideration on October 18, 2008 under Case No. 08-WR-1093.[15]

On December 2, 2010, the Louisiana Fifth Circuit granted reconsideration in accordance with Cordero and denied relief finding no error in its prior ruling.[16] Washington's subsequent writ application in the Louisiana Supreme Court was denied without stated reasons on November 18, 2011.[17]

More than one year later, on December 19, 2012, Washington signed and submitted a motion to the state trial court seeking review and correction of his sentence.[18] The state trial court denied the motion on February 7, 2013.[19]

In its subsequent April 30, 2013 order, the Louisiana Fifth Circuit did not consider Washington's writ application per La.App. R. 4-3, because the application had been filed more than thirty (30) days after the trial court's ruling and was therefore untimely.[20] On March 14, 2014, the Louisiana Supreme Court denied Washington's untimely-filed[21] writ application to that court.[22]

While that writ application was pending, on September 12, 2013, Washington also submitted a motion to amend his sentence to the state trial court.[23] The court denied the motion on November 6, 2013 as procedurally improper under La. Code Crim. P. ...


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