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Abshire v. Keith

United States District Court, W.D. Louisiana, Shreveport Division

June 26, 2015



MARK L. HORNSBY, Magistrate Judge.

In accordance with the standing order of this court, this matter was referred to the undersigned Magistrate Judge for review, report and recommendation.


Before the court is a petition for writ of habeas corpus filed by pro se petitioner Clifford C. Abshire, III. ("Petitioner"), pursuant to 28 U.S.C. § 2254. This petition was received and filed in this court on October 15, 2014. Petitioner is incarcerated at the Winn Correctional Center in Winnfield, Louisiana. He challenges his state court conviction and sentence. He names Warden Timothy Keith as respondent.

On January 13, 2012, Petitioner pleaded guilty to indecent behavior with a juvenile in Louisiana's First Judicial District Court, Parish of Caddo. He was sentenced to ten years imprisonment at hard labor, with the first two years to be served without benefit of parole, probation, or suspension of sentence.

In support of this petition, Petitioner alleges (1) the State failed to properly amend the bill of information and failed to file a plain, concise, and definite statement of the facts constituting the offense, (2) the court failed to inform him of the mandatory sentencing guidelines, (3) the court failed to follow the requirements of Boykin and failed to explain the essential elements of the offense charged, (4) the original charge is non-responsive and not supported by the evidence, (5) he received ineffective assistance of counsel, and (6) the Louisiana Second Circuit Court of Appeal and the Supreme Court of Louisiana denied him relief.

For the reasons that follow, Petitioner is not entitled to the relief requested and his petition should be dismissed because it is barred by the one-year limitation period of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. Section 2244.


On April 24, 1996, the AEDPA amended 28 U.S.C. Section 2244 to provide for a "1-year period of limitation [that] shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court." The limitation period runs from the latest of four possible dates, as follows[1]:

1. the date "the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review";
2. the date "the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed if the applicant was prevented from filing by such State action";
3. the date that "the constitutional right asserted was initially recognized by the Supreme Court, " if it is newly recognized and made retroactively applicable; or
4. the date "the factual predicate of the claim... presented could have been discovered through... due diligence." 28 U.S.C. § 2244 (d)(1).

Therefore, in order for a petition to be considered timely, it must be filed within one year from the most recent date provided by subsections (1) through (4). In the case where a petitioner makes claims that do not implicate subsections (2) through (4), the court must determine when the petitioner's conviction became final on direct review and then toll the limitations period for the time taken for any "properly filed" collateral review applications.

Petitioner pleaded guilty and was sentenced on January 13, 2012. Petitioner did not seek direct review of his conviction and sentence. Thus, his conviction and sentence became final on February 12, 2012, when the delay for filing for an appeal expired and no appeal was filed. See La. C.Cr.P. art. 914.

The federal petition currently before the court was received and filed in this court on October 15, 2014, and signed by Petitioner on October 13, 2014. Since the federal clock began ticking on February 12, 2012 and Petitioner had one full year in which to file his federal petition, Petitioner would have had to file this petition on or before February 12, 2013. This petition was not filed until October 2014 at the earliest, more than one year too late.

In addition, the post-conviction proceedings conducted by Petitioner do not serve to toll the one-year limitation period as they were not filed within the one-year period. See supra footnote 1. Petitioner claims he filed a motion to vacate on May 3, 2013. Review of this motion continued until the Louisiana Second Circuit Court of Appeal denied his motion for reconsideration on October 30, 2013. To toll the federal limitation period, a petitioner's post-conviction proceedings must be filed within the federal one-year period. Petitioner did not file his motion to vacate until May 3, 2013, which was after the limitation period had already expired on February 12, 2013.

For the foregoing reasons, Petitioner's habeas petition should be dismissed because it is time barred by the one-year limitation period imposed by the AEDPA.


IT IS RECOMMENDED that Petitioner's application for writ of habeas corpus be DENIED AND DISMISSED WITH PREJUDICE, sua sponte, because it is time barred by the one-year limitation period imposed by the AEDPA. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1/6/99).


Under the provisions of 28 U.S.C. Section 636(b)(1)(C) and Fed.R.Civ.P. 72(b), parties aggrieved by this recommendation have fourteen (14) days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court unless an extension of time is granted under Fed.R.Civ.P. 6(b). A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. Counsel are directed to furnish a courtesy copy of any objections or responses to the District Judge at the time of filing.

A party's failure to file written objections to the proposed findings, conclusions and recommendation set forth above, within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the proposed factual findings and legal conclusions that were accepted by the district court and that were not objected to by the aforementioned party. See Douglas v. U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc).

An appeal may not be taken to the court of appeals from a final order in a proceeding under Section 2254 unless a circuit justice, circuit judge, or district judge issues a certificate of appealability. 28 U.S.C. § 2253(c); F.R.A.P. 22(b). Rule 11 of the Rules Governing Section 2254 Proceedings for the U.S. District Courts requires the district court to issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A certificate may issue only if the applicant has made a substantial showing of the denial of a constitutional right. Section 2253(c)(2). A party may, within fourteen (14) days from the date of this Report and Recommendation, file a memorandum that sets forth arguments on whether a certificate of appealability should issue.

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