United States District Court, W.D. Louisiana, Shreveport Division
CLIFFORD C. ABSHIRE, III
REPORT AND RECOMMENDATION
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.
STATEMENT OF CLAIM
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.
LAW AND ANALYSIS
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. 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 ...