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Jason v. State

United States District Court, M.D. Louisiana

February 8, 2018

SHELDON A. JASON #611373
v.
STATE OF LOUISIANA, ET AL.

          NOTICE

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         This matter comes before the Court on the petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. There is no need for oral argument or for an evidentiary hearing.

         On or about May 1, 2017, the pro se petitioner, an inmate confined at the David Wade Correctional Center, Homer, Louisiana, filed this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, attacking his criminal conviction and sentence, entered in 2013 in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana. The petitioner asserts that his counsel was ineffective.

         Pertinent Procedural History

         On April 29, 2013, the petitioner pled guilty to: (1) one count of armed robbery; (2) two counts of attempted second degree murder; (3) one count of unauthorized use of a motor vehicle; and (4) and one count of possession of a controlled dangerous substance, which all occurred in connection with the robbery of an occupied apartment on La Margie street in Baton Rouge. On August 15, 2013, the petitioner was sentenced to fifty years on the count of armed robbery, fifty years on each count of attempted second degree murder, ten years on the count of unauthorized use of a motor vehicle, and five years on the count of possession of a controlled dangerous substance, with all sentences to run concurrently.

         On August 22, 2013, the petitioner filed a Motion to Reconsider Sentence, and on March 18, 2014 the trial court amended the petitioner's sentence on the charges of armed robbery and second degree murder to thirty-five years on each count. The petitioner did not appeal his conviction or sentence. On March 3, 2016, the petitioner filed an Application for Post-Conviction Relief, which was denied by the trial court on June 20, 2016. On March 22, 2017, the petitioner filed a Motion to Correct Illegal Sentence, which was denied on April 5, 2017. On or about May 1, 2017, the petitioner filed the present application.

         Applicable Law and Analysis

         Based upon the foregoing, this Court concludes 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).

         In the instant case, the petitioner sentence was amended on March 18, 2014. Because the petitioner did not appeal or seek reconsideration of his sentence, the judgment became final on April 17, 2014, upon the passage of the time allowed for him to pursue an appeal (30 days after his sentencing).[1] Therefore, absent tolling, his petition was required to be filed on or before April 17, 2015. The petitioner waited nearly two years before seeking any post-conviction relief. The instant petition was not filed until May 1, 2017. Accordingly, more than a year elapsed during which the petitioner did not have any properly filed applications for post-conviction or other collateral review pending before the state courts, and the petitioner's application is untimely.

         Having found the petitioner's application to be untimely, this Court must dismiss same pursuant to 28 U.S.C. § 2244(d) unless the petitioner can establish that he is entitled to equitable tolling. The record does not reflect that there is any basis for equitable tolling in this case. In this regard, the one-year federal limitations period is subject to equitable tolling only “in rare and exceptional circumstances.” SeeUnited States v. Patterson,211 F.3d 927, 928 (5th Cir. 2000). The doctrine of equitable tolling “applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.” Coleman v. Johnson,184 F.3d 398, 402 (5th Cir. 1999). “A petitioner's ...


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