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Dixon v. Cain

United States District Court, M.D. Louisiana

January 23, 2018




         The Court has carefully considered the Application for Writ of Habeas Corpus (R. Doc. 1), the record, the law applicable to this action, and the Report and Recommendation of United States Magistrate Judge Richard L. Bourgeois, Jr. dated November 21, 2017. The Plaintiff has filed an Objection (R. Doc. 29) which the Court has also considered.[1]

         The Court approves of the reasoning set forth in the Report and Recommendation of the Magistrate Judge and adopts the following portions as the Court's opinion herein:

         Applicable Law and Analysis Timeliness

          The State of Louisiana asserts that the petitioner's application is untimely. In this regard, 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 that the judgment becomes final through the conclusion of direct review or through the expiration of time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). As provided by the referenced statute, the time during which a properly filed application for state post-conviction or other collateral review is thereafter pending before the state courts with respect to the pertinent judgment or claim shall not be counted toward any part of the one-year limitations period. 28 U.S.C. § 2244(d)(2). However, the time during which there are no properly filed post-conviction or other collateral review proceedings pending does count toward calculation of the one-year period. 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 rules governing filings. Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005), citing Artuz v. Bennett, 531 U.S. 4, 8 (2000). Further, a properly-filed state application is considered to be “pending” both while it is before a state court for review and also during the interval after a state court's disposition while the petitioner is procedurally authorized under state law to proceed to the next level of state court consideration. See Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001).

         The State argues that the Petitioner's conviction became final on January 22, 2009, thirty (30) days after the December 23, 2008 decision of the Louisiana First Circuit Court of Appeal on direct appeal because the Petitioner failed to timely file his application for supervisory review in the Louisiana Supreme Court. This Court has previously determined that the Petitioner's writ application was timely filed. See R. Doc. 26.

         Alternatively, the state argues that the Petitioner's application is untimely because he failed to timely file his application for supervisory review with the Louisiana First Circuit Court of Appeal following the denial of his PCR application by the trial court on August 26, 2013. However, the Petitioner's writ application was signed by the Petitioner on September 25, 2013. See Petitioner's exhibit “K.” The courts of this Circuit have long concluded that the prison mailbox rule applies to the filing of pleadings submitted to courts by Louisiana pro se inmates. Pursuant to that rule, an inmate's pleadings are considered to be filed on the date that they are presented to prison officials or placed into the prison mailing system for transmission to the Court, not on the date that they are ultimately received or docketed by the Court. See Cooper v. Brookshire, 70 F.3d 377, 379-80 (5th Cir. 1995); Vicks v. Griffin, 2008 WL 553186, *3 (E.D. La. Feb. 28, 2008). The inherent basis for the rule is a recognition that, “[u]nskilled in law, unaided by counsel, and unable to leave the prison, [a prisoner's] control over the processing of his [pleadings] necessarily ceases as soon as he hands it over to the only public officials to whom he has access - the prison authorities.” Cooper v. Brookshire, supra, 70 F.3d at 379, quoting Houston v. Lack, 487 U.S. 266, 271-72 (1988). The Cooper court also recognized that application of the rule allows courts to sidestep such potentially difficult issues as the possible motivation of prison officials to delay or obstruct the filing of inmates' complaints, and “pretermits time-consuming examinations of the circumstances behind any delay.” Id. Thus, in the absence of evidence to the contrary, courts have generally presumed that the date that an inmate has signed and dated his Complaint is the date that he has given it to prison officials for mailing to the courts. See Toomer v. Cain, 2010 WL 4723365, n. 3 (E.D. La. July 30, 2010) (finding that, “[g]enerally, a court will look to the date a prisoner signed his pleading”). In the instant case, the Plaintiff's writ application, was signed and dated by him on September 25, 2013. Accordingly, the Court finds that September 25, 2013, is the applicable filing date of the Plaintiff's writ application and was therefore timely filed.

         The Petitioner's conviction became final on January 28, 2010, 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). Thereafter, approximately 245 days elapsed until the Petitioner filed his PCR application on or about September 30, 2010. The Petitioner's PCR application remained pending until the Louisiana Supreme Court denied his writ application on November 14, 2014. Seventy-six days elapsed between the denial of the Petitioner's writ application and the filing the instant petition on January 29, 2015. Therefore, only 321 days of un-tolled time elapsed during which the Petitioner did not have any properly filed application for post-conviction or other collateral relief pending before the state courts. As such, the Petitioner's habeas petition was timely filed and the Court will now address the merits of the same.

         Standard of Review

         The standard of review in this Court is that set forth in 28 U.S.C. § 2254(d). Pursuant to that statute, an application for a writ of habeas corpus shall not be granted with respect to any claim that a state court has adjudicated on the merits unless the adjudication has “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Relief is authorized if a state court has arrived at a conclusion contrary to that reached by the Supreme Court on a question of law or if the state court has decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 413 (2000). Relief is also available if the state court has identified the correct legal principle but has unreasonably applied that principle to the facts of the Petitioner's case or has reached a decision based on an unreasonable factual determination. See Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000). Mere error by the state court or mere disagreement on the part of this Court with the state court determination is not enough; the standard is one of objective reasonableness. Id. See also Williams v. Taylor, supra, 529 U.S. at 409 (“[A] federal habeas court making the ‘unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable”). State court determinations of underlying factual issues are presumed to be correct, and the Petitioner has the burden to rebut that presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         Substantive Review

         Claim 1: Non-Unanimous Verdict

          The Petitioner claims that his conviction by a non-unanimous jury verdict violated his Sixth Amendment right to trial by jury. Louisiana Constitution article I, § 17(A) and Louisiana Code of Civil Procedure article 782(A) provide that cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to reach a verdict. The Petitioner was tried before a twelve person jury, and eleven jurors voted to convict the Petitioner.

         The Petitioner argues that the United States Supreme Court decision in Apodaca v. Oregon, 406 U.S. 404 (1972) holding that non-unanimous jury verdicts do not violate a defendant's constitutional rights, has been called into question by Apprendi v. NewJersey, ...

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