United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
L. Hornsby U.S. Magistrate Judge
accordance with the standing order of this court, this matter
was referred to the undersigned Magistrate Judge for review,
report and recommendation.
the court is a petition for writ of habeas corpus
filed by pro se petitioner Michelle Martorana
(“Petitioner”), pursuant to 28 U.S.C. §2254.
This petition was received and filed in this court on October
28, 2015. Petitioner is incarcerated at the Louisiana
Correctional Institute for Women in St. Gabriel, Louisiana.
She challenges her state court conviction and sentence. She
names Warden James Rogers as respondent.
December 19, 2008, Petitioner pleaded guilty to one count of
attempted second degree murder in the Louisiana Twenty-Sixth
Judicial District Court, Parish of Bossier. On March 3, 2009,
she was sentenced to 48 years imprisonment at hard labor
without benefit of parole, probation, or suspension of
support of this petition, Petitioner alleges (1) her sentence
is illegal because the evidence does not support a crime of
attempt, (2) her sentence is illegal because it is internally
contradictory, (3) her sentence is illegal because it was
imposed under a statute that is unconstitutional on its face
and as applied, (4) her sentence is illegal because her
guilty plea was invalid because of ineffective assistance of
counsel, (5) her sentence is illegal because the statute is
void for vagueness.
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. § 2244.
April 24, 1996, the AEDPA amended 28 U.S.C. § 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