United States District Court, W.D. Louisiana, Shreveport Division
MAGISTRATE JUDGE HORNSBY
ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE
the Court is Petitioner's "Motion for Relief from
Judgment and Order Pursuant to Federal Rules of Civil
Procedure; Rule 60(b)(6)." [Record Document 29].
Petitioner filed a habeas corpus petition in 2012. [Record
Document 1]. The Magistrate Judge recommended that the
petition be denied as time-barred by AEDP A, and Petitioner
objected. [Record Documents 15 and 20]. The Court adopted the
Report and Recommendations and denied Plaintiffs petition as
time-barred. [Record Document 21]. Both this Court and the
Fifth Circuit Court of Appeals denied a certificate of
appealability. [Record Documents 21 and 28].
has moved for relief from judgment for "any other reason
that justifies relief." [Record Document 29 at 1];
Fed.R.Civ.P. 60(b)(6). A motion under Rule 60(b)(6) must be
made "within a reasonable time, " Fed.R.Civ.P.
60(c)(1), and "show extraordinary circumstances
justifying the reopening of a final judgment, "
Clark v. Davis, 850 F.3d 770, 778 (5th Cir. 2017)
(internal quotation marks omitted) (quoting Gonzalez v.
Crosby, 545 U.S. 524, 535 (2005)), As Petitioner's
motion offers no new evidence or arguments, Petitioner has
failed to meet his burden of showing the extraordinary
circumstances necessary to grant relief from judgment.
Therefore, Petitioner's Motion for Relief from Judgment
Magistrate, this Court, and the Court of Appeals have already
explained that Petitioner's claims are time-barred.
[Record Documents 15, 21, 28]. AEDPA imposes a one-year
statute of limitations that is tolled during the pendency of
state post-conviction relief proceedings. 28 U.S.C. §
2244(d)(2) (2012). Although his conviction became final on
July 16, 2006, Petitioner did not file his state
post-conviction relief application until April 2008. Because
state court proceedings did not commence until after the
federal statute of limitations had already expired,
Petitioner is not entitled to statutory tolling.
also argues that his limitation period began when he
discovered the identity of a new witness in March 2013. AEDPA
provides that the limitation period may run from "the
date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of
due diligence." 28 U.S.C. § 2244(d)(1)(D). Although
in its judgment the Court declined to find the specific date
on which Petitioner could, with the exercise of due
diligence, have discovered this witness's identity, the
Court found that "Petitioner failed to meet his burden
to justify the application of 28 U.S.C. § 2244(d)(1)(D)
to make his application timely." [Record Document 2 i at
1]. As Petitioner has presented no new evidence that would
explain his failure to discover this witness's identity
for over eight years despite knowing of the witness's
existence at the time of his trial in 2004, the Court
declines to disturb its earlier finding that §
2244(d)(1)(D) does not apply.
Petitioner requests equitable tolling because his failure to
timely file his habeas petition was caused by the
unprofessional conduct of his post-conviction attorney who
timely filed Petitioner's state post-conviction relief
application, but only did so after the statute of limitations
for federal habeas relief had expired. [Record Document 29 at
5-8]. To be entitled to equitable tolling, Petitioner must
show that he has pursued his rights diligently and that some
"extraordinary circumstance" prevented timely
filing. Lawrence v. Florida, 549 U.S. 327, 336
(2007) (citing Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). The Court
does not determine whether Petitioner's repeated letters
reminding his post-conviction attorney that the federal
statute of limitations was running constitute due diligence.
[Record Document 29-1 at 13, 17, 19]. This determination is
unnecessary because Petitioner has not shown an extraordinary
circumstance that prevented timely filing. Petitioner's
complaint about his attorney's conduct was dismissed by
the Louisiana Office of Disciplinary Counsel; the Louisiana
Attorney Disciplinary Board subsequently affirmed that
decision, and the Louisiana Supreme Court denied leave to
appeal the matter. [Record Document 17-2 at 13-15, 17-4 at
70-74]. Although Petitioner's attorney was indeed
suspended from the practice of law by the Louisiana Supreme
Court in 2011, he was suspended for violations related to
other clients. In re Gold, 2010-2450 (La. 3/15/11);
59 So. 3d 396. Moreover, even if Petitioner's
post-conviction attorney had engaged in unprofessional
conduct, "[m]ere attorney error or neglect is not an
extraordinary circumstance such that equitable tolling is
justified." United States v. Petty, 530 F.3d
361, 366 (5th Cir. 2008) (citing United States v.
Riggs, 314F.3d 796, 799 (5th Cir. 2002)).Nothing prevented
Petitioner from filing his own habeas petition, and
Petitioner's own exhibits indicate his awareness as early
as December 2006 of the existence of a time bar for federal
habeas relief. [Record Documents 29 at 5 and 29-1 at 13].
Therefore, Petitioner is not entitled to equitable tolling.
Petitioner argues that the actual innocence exception applies
and excuses his failure to timely file his habeas petition.
[Record Document 29 at 8-12]. "[A]ctual innocence, if
proved, serves as a gateway through which a petitioner may
pass" when the statute of limitations applicable to a
habeas claim has expired. McQuiggin v. Perkins, 133
S.Ct. 1924, 1928 (2013). However, to avail himself of this
exception, Petitioner "must show that it is more likely
than not that no reasonable juror would have convicted him in
the light of the new evidence." Id. at 1935
(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
To support his claim of actual innocence, Petitioner relies
upon the affidavit of a witness whose identity Petitioner
claims to have discovered only in 2013. [Record Document 29
at 3]. The entire substantive portion of the affidavit is as
I, Donald Drake, would have testified under oath the Caddo
Parish Courthouse if counsel are the District Attorney had
subpoena me, I had desired to appear voluntarily, but I had a
problem remembering the name of the police office I had
talked to the night at the scene -1 do have knowledge and
information that could more probable than not have changed
the whole out come of the rial, since I's an eye witness
with the knowledge of what actually taken place that night,
[Record Document 17-2 at 54]. This vague and conclusory
statement does not meet Petitioner's burden to
demonstrate actual innocence sufficient to overcome
AEDPA's one-year statute of limitations. Cf. Evans v.
McCotter, 805 F.2d 1210, 1214 (5th Cir. 1986) (holding
that a "general and conclusory" affidavit does not
create a fact question).
light of the foregoing, Petitioner's motion [Record
Document 29] is DENIED.
DONE AND SIGNED.