United States District Court, M.D. Louisiana
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
RICHARD L. BOURGEOIS, Jr., Magistrate Judge.
This matter comes before the Court on the petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The State has filed an opposition to the petitioner's application, and the petitioner has filed a response. There is no need for oral argument or for an evidentiary hearing.
On or about December 3, 2013, the pro se petitioner, an inmate confined at Allen Correctional Center, Kinder, Louisiana, filed this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, attacking his criminal conviction and 20-year sentence, as enhanced by a multiple offender adjudication, entered in 2008 in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana, on one count of aggravated battery. The petitioner asserts that he was provided with ineffective assistance of counsel on appeal because his attorney failed to preserve as appellate issues the alleged insufficiency of the evidence to support the conviction, the alleged discriminatory use of peremptory challenges by the prosecution during jury selection in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and the alleged improper admission of other crimes evidence against the petitioner at trial.
A review of the record reflects that the petitioner was charged by an amended Bill of Information with one count of attempted second degree murder. After a jury trial conducted in 2005, the petitioner was found guilty of the responsive offense of aggravated battery. The State thereafter signified its intent to charge the petitioner as a multiple offender and, after a hearing conducted in December, 2005, the petitioner was adjudicated a fourth felony offender and sentenced to serve twenty (20) years in confinement, without the benefit of parole, probation or suspension of sentence. The petitioner thereafter appealed that determination to the Louisiana Court of Appeal for the First Circuit, challenging only the constitutionality of the sentence. On September 15, 2006, the appellate court affirmed the conviction and multiple offender adjudication but remanded for re-sentencing in light of the court's conclusion that the sentence should have provided for parole eligibility. See State v. Morgan, 943 So.2d 500 (La.App. 1st Cir. 2006). The petitioner did not seek further review of that determination in the Louisiana Supreme Court.
The petitioner was re-sentenced in February, 2008, again to 20 years in confinement, and he again appealed, asserting both counseled and pro se claims, including (1) that the jury's verdict was not unanimous, (2) that his sentence was excessive, (3) that the evidence was insufficient to support the verdict, and (4) that the prosecution engaged in racial discrimination during jury selection in violation of Batson v. Kentucky, supra . On February 13, 2009, the intermediate appellate court affirmed the petitioner's 20-year sentence. See State v. Morgan, 5 So.3d 314 (La.App. 1st Cir. 2009). In doing so, however, the appellate court considered only the petitioner's claim regarding the alleged excessiveness of the sentence and concluded that the other claims were not properly before the court, specifically because the validity of the petitioner's conviction and multiple offender adjudication had already been finally determined by reason of the court's decision in connection with the petitioner's initial appeal. The petitioner's request for rehearing before the First Circuit Court was denied on March 31, 2009. The petitioner did not seek further review before the Louisiana Supreme Court in connection with the decision of the intermediate appellate court. Accordingly, his conviction and sentence became final on April 30, 2009, upon the passage of the 30-day period allowed for him to do so. See Louisiana Supreme Court Rule X, § 5(a) (providing a thirty-day deadline for seeking further review in the Louisiana Supreme Court from a decision of the intermediate appellate court).
On or about May 3, 2009,  the petitioner filed an application for post-conviction relief ("PCR") in the state trial court, contending that he was provided with ineffective assistance of counsel in connection with his initial appeal because his appellate attorney failed to raise as issues for review, and thereby failed to preserve, the alleged insufficiency of the evidence to support the verdict, the alleged wrongdoing of the prosecution during jury selection in violation of Batson v. Kentucky, supra, and the alleged erroneous introduction of other crimes evidence during trial. Upon the conclusion of proceedings in connection with the petitioner's PCR application in the trial court, the state district judge issued a final Ruling dismissing the application on December 6, 2010. It appears, however, that a copy of that Ruling was not mailed to the petitioner at the time it was executed, and the petitioner contends that he did not in fact receive a copy of the Ruling until approximately 1½ years later, on or about July 17, 2012. As discussed in greater detail hereafter, however, the petitioner was in fact notified of the Ruling much earlier, in January, 2011. Specifically, whereas the petitioner had filed, in September, 2010, an application for mandamus relief in the Louisiana First Circuit Court of Appeal, complaining that there had been no decision issued in connection with his PCR application, the First Circuit denied the mandamus application as "moot" on January 14, 2011, explicitly advising the petitioner in its Mandate that "the trial court acted on relator's application for postconviction relief on December 6, 2010." Accordingly, the petitioner was placed on notice in mid-January, 2011, that a Ruling on his PCR application had been issued approximately a month earlier, in December, 2010. The petitioner complains, however, that despite numerous attempts at obtaining a copy of the Ruling of December 6, 2010, he was not in fact provided with same until July 17, 2012, more than eighteen (18) months later, and he asserts that the resulting delay was not attributable to any fault on his part.
Upon receipt, finally, in July, 2012, of a copy of the December 6, 2010, Ruling denying his PCR application, the petitioner filed an application for supervisory review in the Louisiana intermediate appellate court on or about August 16, 2012, which court denied review on October 29, 2012, without comment. According to the State, the petitioner thereafter filed an untimely writ application for further review before the Louisiana Supreme Court on or about February 19, 2013,  and that Court also denied review without comment, on November 15, 2013. See State ex rel. Morgan v. State, 125 So.3d 1099 (La. 2013). The petitioner thereafter filed the instant application for federal habeas corpus review in this Court on or about December 3, 2013.
Based upon the foregoing, this Court concludes, as asserted by the State of Louisiana, that the petitioner's application is untimely. In this regard, pursuant to 28 U.S.C. § 2244(d), there is a one-year statute of limitations applicable to federal habeas corpus claims brought by prisoners in state custody. This limitations period begins to run on the date that the judgment becomes final through the conclusion of direct review or through the expiration of time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). As provided by the referenced statute, the time during which a properly filed application for state post-conviction or other collateral review is thereafter pending before the state courts with respect to the pertinent judgment or claim shall not be counted toward any part of the one-year limitations period. 28 U.S.C. § 2244(d)(2). However, the time during which there are no properly filed post-conviction or other collateral review proceedings pending does count toward calculation of the one-year period. To be considered "properly filed" for purposes of § 2244(d)(2), an application's delivery and acceptance must be in compliance with the applicable laws and rules governing filings. Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005), citing Artuz v. Bennett, 531 U.S. 4, 8 (2000). Further, a properly-filed state application is considered to be "pending" both while it is before a state court for review and also during the interval after a state court's disposition while the petitioner is procedurally authorized under state law to proceed to the next level of state court consideration. See Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001).
In the instant case, the petitioner's conviction became final on April 30, 2009, thirty (30) days after the March 31, 2009, decision of the Louisiana First Circuit Court of Appeal on direct appeal, denying the petitioner's request for rehearing in connection with his re-sentence of February 6, 2008. Specifically, the conviction became final when the petitioner failed to timely seek further review by filing an application for supervisory review in the Louisiana Supreme Court within thirty days. See Louisiana Supreme Court Rule X, § 5(a). Accordingly, inasmuch as the petitioner's direct appeal proceedings were concluded on April 30, 2009, the one-year limitations period for filing a federal habeas corpus application began to run on that date. Approximately one month later, on or about June 3, 2009, the petitioner filed a PCR application in the state trial court, tolling the limitations period and asserting the ineffective assistance claims that he now presents before this Court. As a result, only thirty-three days (April 30, 2009, to June 3, 2009) elapsed from the one year limitations period before the petitioner tolled the running thereof through the filing of his PCR application. The limitations period thereafter remained tolled until the state trial court finally denied the petitioner's PCR application pursuant to its Ruling of December 6, 2010, and the limitations period also remained tolled for an additional thirty-day period, or until January 5, 2011, during which the petitioner was authorized by Louisiana procedural rules to seek further review by filing an application for supervisory review in the intermediate appellate court. See Rule 4-3 of the Uniform Rules of the Louisiana Courts of Appeals. The petitioner, however, did not file an application for supervisory review during that interval or seek an extension of time to do so and, as a result, in the absence of statutory or equitable tolling of the limitations period as hereafter discussed, the limitations period began to run again on January 6, 2011, and expired approximately eleven months later. Although the petitioner later took action to seek appellate review of the PCR denial by filing an application for supervisory writs in the state appellate court on or about August 16, 2012, that application was filed more than 1½ years after both the state court denial of the PCR application and the date that the petitioner was advised thereof by the First Circuit Court's Mandate of January 14, 2011. Accordingly, more than a year elapsed during which the petitioner did not have any properly filed applications for post-conviction or other collateral review pending before the state courts. Absent further statutory or equitable tolling, therefore, as hereafter discussed, it appears that the limitations period elapsed and that the petitioner's application is untimely.
In seeking to avoid the effect of the limitations period, the petitioner contends that, because the state trial court failed to serve him with a copy of the trial court's Ruling of December 6, 2010, denying his PCR application, and because he was thereafter unsuccessful - despite repeated attempts - in obtaining a formal copy of the trial court's Ruling until July 16, 2012, the time that elapsed after the date of the referenced Ruling and prior to his filing of an appellate writ application in the intermediate appellate court in August, 2012, should not be counted against him. This contention may be interpreted as asserting that the state court's long delay in sending him a copy of the PCR Ruling should result in either (1) statutory tolling under 28 U.S.C. § 2244(d)(1)(B), which provides for the tolling of the limitations period when the petitioner faces an "impediment to filing an application created by State action in violation of the Constitution or laws of the United States, " or (2) equitable tolling in light of the particular facts of this case. In this regard, equitable tolling of the limitations period may be available in rare instances if "some extraordinary circumstance stood in [the petitioner's] way and prevented timely filing." See Holland v. Florida, 560 U.S. 631, 649 (2010). This Court will address both potential avenues for additional tolling in the instant case.
Pursuant to 28 U.S.C. § 2244(d)(1)(B), the limitations period does not run against a habeas petitioner during the period that he faces a state-created impediment to filing that is "in violation of the Constitution or laws of the United States." By its terms, however, this provision applies only "if the applicant was prevented from filing by such State action." Thus, a petitioner asserting a state-created impediment under this provision has the burden of showing that "(1) he was prevented from filing a federal habeas corpus petition (2) by State action (3) in violation of the Constitution or federal law." Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003). The Court concludes ...