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Bias v. Wendom

United States District Court, W.D. Louisiana

June 30, 2015

CLEVELAND TROY BIAS LA. DOC #247758, SECTION P
v.
WARDEN JEFF WENDOM

REPORT AND RECOMMENDATION

C. MICHAEL HILL, Magistrate Judge.

Pro se petitioner Cleveland Troy Bias, an inmate in the custody of the Louisiana Department of Corrections filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on March 9, 2015.[1] Petitioner attacks his 2007 conviction for distribution of cocaine and his subsequent adjudication as an habitual offender, for which he was ultimately sentenced to fifteen years imprisonment by the Fifteenth Judicial District Court for Acadia Parish, Louisiana. This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the Court.

For the reasons which follow, IT IS RECOMMENDED that this petition for habeas corpus be DENIED AND DISMISSED WITH PREJUDICE because petitioner's claims are barred by the one-year limitation period codified at 28 U.S.C. § 2244(d) and alternatively, because petitioner's claims are procedurally defaulted.

Statement of the Case

Petitioner was charged with distribution of cocaine in case number 68872. On September 26, 2007, he was found guilty as charged. On March 3, 2008, petitioner was sentenced to serve 10 years imprisonment. On January 7, 2008, the State filed an habitual offender bill in case number 72750. On May 13, 2009, petitioner was adjudicated an habitual offender. Accordingly, petitioner's original sentence was vacated and petitioner was re-sentenced to serve 15 years imprisonment. [Doc. 1, ¶1-6; 1-2, p. 3; Doc. 1-3, p. 6 (Court Minutes)].

Prior to being adjudicated an habitual offender, on August 4, 2008 petitioner filed an application for post-conviction relief in the District Court, alleging that his counsel was ineffective for failing to file a motion for an appeal. On January 7, 2009, a hearing on the application for post-conviction relief was held, at the conclusion of which, relief was denied. On March 26, 2009, petitioner filed an application for writs in the Third Circuit Court of Appeals. This application was denied as deficient on May 26, 2009. State of Louisiana v. Cleveland Troy Bias, 09-371 (La.App. 3 Cir. 5/26/2009).

Petitioner filed another writ application in the Third Circuit on August 25, 2009. That writ application was denied on November 5, 2009 because petitioner had not provided a copy of the January 7, 2009 evidentiary hearing transcript. State of Louisiana v. Cleveland Troy Bias, 09-1023 (La.App. 3 Cir. 11/5/2009). [Doc. 1-2, pp. 3-4].

On March 22, 2010, petitioner filed a motion for out-of-time appeal in the District Court. Thereafter, he filed a petition for mandamus in the Third Circuit seeking a ruling on his motion. The Third Circuit denied mandamus relief on September 10, 2010 because the Acadia Parish Clerk of Court claimed that the Court had not received petitioner's motion. State of Louisiana v. Cleveland Troy Bias, 10-923 (La.App. 3 Cir. 9/10/2010). [Doc. 1-2, p. 4]

On September 13, 2010, an evidentiary hearing on petitioner's motion for out-of-time appeal was held. Thereafter, for reasons assigned on September 16, 2010, relief was denied. [Doc. 1-3, p. 7]. On October 19, 2010 petitioner filed a writ application in the Third Circuit. That application was denied on December 6, 2010 because petitioner failed to provide a copy of the evidentiary hearing transcript or a copy of his Motion for an out-of-time Appeal. State of Louisiana v. Cleveland Troy Bias, 10-1264 (La.App. 3 Cir. 12/6/2010). [Doc. 1-2, p. 4].

On December 16, 2010, petitioner filed another writ application in the Third Circuit, presumably with the missing documentation. On January 23, 2012, the Third Circuit granted writs and ordered the District Court to grant petitioner's motion for out-of-time appeal. State of Louisiana v. Cleveland Troy Bias, 10-1510 (La.App. 3 Cir. 1/23/2012). [Doc. 1-3, p. 8]. The District Court complied with that Order on January 27, 2012 by granting separate out-of-time appeals with respect to petitioner's conviction in case number 68872 and petitioner's habitual offender adjudication and multiple offender sentence in case number 72750.

On December 5, 2012, the Louisiana Third Circuit Court of Appeals affirmed petitioner's conviction, habitual offender adjudication, and sentence in separate Orders appeals. [Doc. 1-2, p. 5; 1-3, p. 9 and 10]. State of Louisiana v. Cleveland Troy Bias, 2012-0609 (La.App. 3 Cir. 12/5/2012), 103 So.3d 744 (Table) 2012 WL 6030889 (conviction); and State of Louisiana v. Cleveland Troy Bias, 2012-0610 (La.App. 3 Cir. 12/5/2012), 103 So.3d 744 (Table); 2012 WL 6028911.

Sometime in April, 2013, [2] petitioner filed an application for post-conviction relief in the trial court raising claims of (1) ineffective assistance of counsel; (2) errors with respect to a photographic lineup; and (3) the constitutionality of the habitual offender adjudication. On June 26, 2013, the District Court denied the application. In so doing, the Court held that petitioner's petitioner's claims regarding the photographic lineup and his habitual offender adjudication were defaulted as they had previously been litigated on direct appeal. [Doc. 1-3, p. 12]. On July 29, 2013, petitioner filed an application for writ of review in the Third Circuit Court of Appeals. The Third Circuit denied writs on November 19, 2013 finding that "[t]he trial court did not err in denying [petitioner's] application for post conviction relief." State of Louisiana v. Cleveland Troy Bias, 13-857, (La.App. 3 Cir. 11/19/2013. [Doc. 1-3, p. 11]. Notice of Judgment was mailed to petitioner on November 19, 2013. [Doc. 1-3, p. 11].

On April 7, 2014, petitioner filed an application for writ of review in the Louisiana Supreme Court. On January 16, 2015, the Louisiana Supreme Court denied review without comment. State of Louisiana ex rel. Cleveland Troy Bias v. State of Louisiana, 2014-0746 (La. 1/16/2015), 157 So.3d 1123. [Doc. 1-3, p. 13]. Petitioner suggests that in this writ application he sought review of the Third Circuit's decision on his post-conviction application under docket number 13-857; however, the decision of the Louisiana Supreme Court reveals that this writ application sought review of the Third Circuit's decisions on petitioner's direct appeals under docket numbers XXXX-XXXX and XXXX-XXXX. [Doc. 1-2, p. 6].

Petitioner filed the instant petition on March 9, 2015.[3] He argues the following claims for relief: (1) insufficiency of the evidence; (2) ineffective assistance of trial counsel; (3) denial of an evidentiary hearing on petitioner's post-conviction claim of ineffective assistance of counsel; and, (4) failure ...


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