United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
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.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
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.
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.
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.
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
Law and Analysis
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).
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). 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.
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