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Robinson v. Cain

United States District Court, M.D. Louisiana

February 9, 2018

SIDNEY ROBINSON (#377294)
v.
N. BURL CAIN

          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 November 3, 2015, the pro se petitioner, an inmate confined at the Louisiana State Penitentiary, Angola, Louisiana, filed this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, attacking his criminal conviction and sentence, entered in 1997 in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana. The petitioner asserts that his guilty plea was invalid.

         Pertinent Procedural History

         On January 22, 1997, the petitioner pled guilty to two counts of first degree murder. On March 25, 1997, the petitioner was sentenced, on each count, to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence, to be served consecutively.

         The petitioner did not appeal his conviction or sentence. On September 28, 2001, the petitioner filed his first Application for Post-Conviction Relief, which was denied by the trial court on February 5, 2002. Thereafter, the petitioner filed two additional Applications for Post-Conviction Relief, which were denied by the trial court. The petitioner sought further review of the denial of his third PCR application, which was denied by the First Circuit on November 19, 2014, and by the Louisiana Supreme Court on October 23, 2015. See State v. Robinson, 14-1524 (La.App. 1 Cir. 11/19/14), 2014 WL 12570088 and State ex rel. Robinson v. State, 14-2627 (La. 10/23/15), 177 So.3d 1055. On November 3, 2015, 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 was sentenced on March 25, 1997. Because the petitioner did not appeal or seek reconsideration of his sentence, the judgment became final, by operation of law, on March 30, 1997, upon the passage of the time allowed for him to pursue an appeal (5 days after his sentencing).[1] Therefore, absent tolling, his petition was required to be filed on or before March 30, 1998. The petitioner waited over four years before seeking any post-conviction relief. The instant petition was not filed until November 3, 2015. 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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