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Brown v. Cain

United States District Court, M.D. Louisiana

March 24, 2017

RANNEL BROWN (# 456766)
v.
BURL CAIN, WARDEN

RULING

          JOHN W. deGRAVELLES JUDGE.

         This matter comes before the Court on Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The State has filed a response wherein it asserts the procedural objection of untimeliness in response to Petitioner's application. Petitioner has filed a Traverse in opposition to the State's response. There is no need for oral argument or for an evidentiary hearing.

         Petitioner Rannel Brown challenges his convictions entered in 2006 in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana. Petitioner was originally charged with separate counts of (1) second degree murder, (2) armed robbery, (3) possession of stolen property, (4) possession of a controlled dangerous substance, (5) possession of a firearm by a convicted felon, (6) possession of a firearm while in possession of a controlled dangerous substance, and (7) possession of body armor by a convicted felon. After a bench trial, Petitioner was found guilty of all charged offenses except Count two (armed robbery). On August 18, 2006, Petitioner was sentenced to life imprisonment on Count One, to five years imprisonment on Count Three, to five years imprisonment on Count Four, to ten years imprisonment on Count Five, to five years imprisonment on Count Six, and to two years imprisonment on Count Seven, with all sentences to run concurrently.

         On direct appeal, Petitioner asserted (1) that there was insufficient evidence to support the convictions, (2) that the convictions for possession of a controlled dangerous substance and possession of a firearm while in possession of a controlled dangerous substance constituted double jeopardy, and (3) that the trial court failed to give Petitioner a 24-hour delay between the denial of his motion for new trial and the imposition of sentence as required by state law. On May 4, 2007, the Louisiana Court of Appeal for the First Circuit overturned Petitioner's convictions as to Counts Three and Four, affirmed Petitioner's convictions as to Counts One, Five, Six and Seven, and vacated the sentences on those four counts and remanded the matter to the state district court for resentencing. See State v. Brown, 956 So.2d 850 (La.App. 1st Cir. 2007). Petitioner filed a pro se application for rehearing in the intermediate appellate court on or about May 18, 2007, [1] which application was denied without comment on July 9, 2007. Petitioner also sought supervisory review in the Louisiana Supreme Court, which Court denied review, without comment, on March 28, 2008. See State v. Brown, 978 So.2d 299 (La. 2008).[2] Upon the failure of Petitioner to file an application for a writ of certiorari in the United States Supreme Court, his conviction became final on June 26, 2008, after expiration of the ninety-day period allowed for him to do so.

         On March 24, 2009, approximately one year after the decision of the Louisiana Supreme Court, Petitioner filed a counseled application for post-conviction relief ("PCR") in the state district court, wherein he asserted four (4) claims regarding the alleged ineffectiveness of his trial counsel. Pursuant to a Ruling dated September 29, 2011, the state court denied all of Petitioner's claims but one, concluding that an evidentiary hearing should be conducted as to that claim. After an evidentiary hearing held on January 20, 2012, and after the submission of post-hearing memoranda, the trial court denied Petitioner's PCR application on May 30, 2012.

         The record reflects that Petitioner's attorney filed in the state trial court, on June 20, 2012, a timely request for a return date to perfect a supervisory writ of review in the intermediate appellate court. Although the trial court granted that request on the same date and set a return date of June 26, 2012, Petitioner's attorney did not meet that deadline. Instead, he filed a second request for a return date on July 26, 2012, asserting that he had not received the court's initial order setting the earlier date and so had not known of the deadline. In response to Petitioner's second request, the court granted Petitioner a second return date of September 7, 2012, and Petitioner, through his attorney, filed an application for supervisory review in the Louisiana Court of Appeal for the First Circuit on that date. The state appellate court, however, rejected the writ application on November 19, 2012, without substantive review, finding that Petitioner had failed to comply with the procedural requirements set forth in the Uniform Rules, Louisiana Courts of Appeal, which Rules identify specific documentation that a petitioner must provide when filing an application for supervisory review.[3] Specifically, the appellate court stated:

WRIT NOT CONSIDERED. Relator failed to comply with Uniform Rules of Louisiana Courts of Appeal, Rule 4-2 and 4-3, by failing to request a return date within 30 days of the September 2011 ruling. Relative to the May 2012 ruling, relator failed to comply with Rules 4-3 and 4-5(C)(l 1), by failing to include documentation of the initial request for a return date and the return date. Relator failed to comply with Rule 4-5(A), in that the application does not contain an affidavit verifying the allegations of the application and certifying that a copy has been delivered or mailed to the respondent judge and to opposing counsel, and listing the addresses and telephone numbers of the respondent judge and opposing counsel. Relator also failed to comply with Rule 4-5(C)(6), (7), (8), and (10), by failing to include a copy of the September 2011 judgment, a copy of the judge's reasons for that judgment (if any), a copy of the indictment, and a copy of the pertinent court minutes. Moreover, although it is not a violation of the Uniform Rules, we note that relator failed to include a copy of the trial transcript, a transcript of the postconviction hearing, and a copy of any exhibits introduced at the hearing....
Supplementation of this writ application and/or an application for rehearing will not be considered. See Uniform Rules of Louisiana Courts of Appeal, Rules 2-18.7 & 4-9. If relator elects to file a new application in compliance with Uniform Rules of Louisiana Courts of Appeal, Rule 4-5, which includes proof that a timely return date was obtained and otherwise corrects the deficiencies noted herein, he may do so on or before January 22, 2013. However, any future filing should include the entire contents of this application, a copy of this ruling, the missing items noted above, as well as a copy of the original return date, any requests for extensions to the return date, and any extensions set by the district court.

See State Court Record, Vol. I. Petitioner, through his attorney, thereafter filed a second application for supervisory review with the intermediate appellate court - as authorized by the court - on January 15, 2013 providing additional documentation in an attempt to comply with the court's directive. See State Court Record, Vol. III. The appellate court, however, On March 14, 2013, again declined to review the writ application on procedural grounds, stating:

WRIT NOT CONSIDERED. Relator's application does not comply with the Uniform Rules of Louisiana Courts of Appeal, Rules 4-2, 4-3, 4-5(C)(6), (9), (10) and (11). Supplementation of this writ application and/or an application for rehearing will not be considered. See, Uniform Rules of Louisiana Courts of Appeal, Rules 2-18.7 & 4-9.

See State v. Brown, 2013 WL 12125419 (La.App. 3rd Cir. Mar. 14, 2013). From this determination, Petitioner's attorney filed, on April 12, 2013, a timely writ of supervisory review in the Louisiana Supreme Court, asserting both that the appellate court had unfairly rejected his writ application on procedural grounds and that the substantive claims asserted in the writ application were meritorious. Petitioner also filed a pro se writ application for supervisory review before the Supreme Court (asserting the same claims) and, in addition, filed on or about May 16, 2013 a third application for supervisory review before the intermediate appellate court, this time pro se. Petitioner's pro se application for supervisory review was denied without comment by the intermediate appellate court on August 28, 2013, and the two pending writ applications before the Louisiana Supreme Court, one filed by counsel and one filed pro se, were consolidated and denied without comment on January 17, 2014. See State v. Brown, 130 So.3d 339, 2014 WL 321797 (La. 2014), and State ex rel. Brown v. State, 130 So.3d 339, 2014 WL 321807 (La. 2014).

         Finally, on or about February 14, 2014, Petitioner filed his federal habeas corpus application in this Court.[4] Based on the foregoing procedural history, the Court concludes that Petitioner's application is untimely.

         Petitioner's Claims Are Untimely

         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 upon which the judgment becomes final (by conclusion of direct review or through expiration of the time for seeking such review). 28 U.S.C. § 2244(d)(1)(A). As provided by statute, the time during which a properly filed application for state post-conviction or other collateral review is thereafter pending with respect to the pertinent judgment or claim tolls the one-year limitations period and shall not be counted toward any part of that period. 28 U.S.C. § 2244(d)(2). In contrast, the time during which there is no properly-filed state court application pending is counted against the one-year period. Applications must remain both "properly filed" and "pending" to provide a petitioner with the benefit of statutory tolling. 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 procedural rules governing filings. Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005), citing Artuz v. Bennett, 531 U.S. 4, 8 (2000). Further, a state application is "pending" both while it is before a state court for review and also during the interval of time after a state court's disposition while the petitioner is procedurally authorized under state law to proceed to the next level of state consideration. Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001).

         In the instant case, as noted above, Petitioner's conviction became final on June 26, 2008, ninety days after denial of his application for supervisory review in the Louisiana Supreme Court on March 28, 2008 in connection with his direct appeal. See Roberts v. Cockrell,319 F.3d 690, 694 (5th Cir. 2003). Petitioner thereafter waited until March 24, 2009, a full year after the decision of the Louisiana Supreme Court and approximately nine months after the finality of his conviction, before his retained attorney filed an application for post-conviction relief in state court. Inasmuch as there were no collateral review proceedings pending during that interval, 270 days elapsed on the one-year clock. Thereafter, statutory tolling commenced on March 24, 2009 when Petitioner filed his PCR application in the state district court. The one-year period thereafter remained tolled until denial of Petitioner's PCR application in the state trial court on May 30, 2012, and for an additional thirty (30) days thereafter, or until June 29, 2012, because Louisiana procedural law provides for a 30-day period to proceed to the next level of state review and because, under federal law, as explained above, the limitations period remains tolled both during the time that a properly-filed post-conviction review application is pending before the state trial court and during the interval after the ruling ...


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