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Leonard v. Cooley

United States District Court, M.D. Louisiana

February 14, 2018




         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.



         This matter comes before the Court on Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The State has filed a response wherein it asserts the procedural defense of untimeliness in response to Petitioner's application. Petitioner has filed a Motion for Summary Judgment (R. Doc. 18) wherein he complains that the State did not initially comply with an Order of this Court to provide a complete copy of the state court record. There is no need for oral argument or for an evidentiary hearing.

         Petitioner Colby Leonard challenges his conviction entered in 2008 in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana, on one count of armed robbery. After a jury trial, Petitioner was found guilty of the charged offense and, on March 27, 2008, Petitioner was sentenced to thirty-five years in confinement, with the sentence to be served without the benefit of probation, parole or suspension of sentence.

         On direct appeal, Petitioner asserted the single claim that the trial court erred in denying a motion to reconsider the sentence, effectively contending that the sentence was unconstitutionally excessive in light of specific mitigating factors. On March 27, 2009, the Louisiana Court of Appeal for the First Circuit affirmed Petitioner's conviction and sentence. See State v. Leonard, 5 So.3d 1061, 2009 WL 838624 (La.App. 1 Cir. 2009). Petitioner thereafter sought supervisory review before the Louisiana Supreme Court, which Court denied review, without comment, on January 8, 2010. See State v. Leonard, 24 So.3d 859 (La. 2010). Upon the failure of Petitioner to file an application for a writ of certiorari in the United States Supreme Court, his conviction became final on April 8, 2010, after expiration of the ninety-day period allowed for him to do so. See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2010) (recognizing that a conviction becomes final for federal purposes after the 90-day period allowed for a petitioner to proceed in the United States Supreme Court if he has not pursued such relief).

         On or about February 10, 2011, [1] approximately ten months after the finality of his conviction, Petitioner filed an application for post-conviction relief (“PCR”) in the state district court, wherein he asserted “numerous (nineteen jumbled and co-mingled) claims in his twenty-one page, single-lined, handwritten memorandum which includes ineffective assistance of counsel, a defective bill of information and a Brady violation allegation.” (Recommendation of the State Court Commissioner dated March 26, 2013). Pursuant to a Ruling dated May 1, 2013, the state trial judge accepted the Commissioner's Recommendation that Petitioner's claims be rejected and dismissed Petitioner's PCR application.

         The record reflects that Petitioner thereafter filed in the state intermediate appellate court, on or about May 23, 2013, a request for supervisory writ of review relative to the denial of his PCR application. The state appellate court, however, rejected the writ application on August 27, 2013, without substantive review, finding that Petitioner had failed to comply with the procedural requirements set forth in the Uniform Rules, Louisiana Courts of Appeal, which Rules identify specific documentation that a petitioner must provide when filing an application for supervisory review.[2] Specifically, the appellate court stated:

WRIT DENIED ON THE SHOWING MADE. Relator has failed to include all pertinent transcripts and minute entries, and any other portions of the district court record that might support the claims raised in the application for postconviction relief. Supplementation of this writ application and/or an application for rehearing will not be considered. See Uniform Rules of Louisiana Courts of Appeal, Rules 2-18.7 & 4-9. Any future filing on this issue should include the entire contents of this application, the missing items noted above, and a copy of this ruling. In the event relator elects to file a new application with this Court, the application must be filed on or before October 22, 2013.

See State v. Leonard, 2013 WL 12120742 (La.App. Aug. 27, 2013). In response to this admonition, Petitioner filed a new writ application on or about September 12, 2013, which application was denied by the appellate court on February 27, 2014. From this determination, Petitioner filed, on or about March 19, 2014, a timely writ of supervisory review in the Louisiana Supreme Court. Petitioner's writ application was thereafter denied, without comment, on January 9, 2015. See State ex rel. Leonard v. State, 157 So.3d 591 (La. 2015).

         Finally, on or about February 4, 2015, Petitioner filed the instant federal habeas corpus application in this Court. Based on the foregoing procedural history, the Court concludes that Petitioner's application is untimely.

         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 upon which the judgment becomes final (by conclusion of direct review or through expiration of the time for seeking such review). 28 U.S.C. § 2244(d)(1)(A). As provided by statute, the time during which a properly filed application for state post-conviction or other collateral review is thereafter pending with respect to the pertinent judgment or claim tolls the one-year limitations period and shall not be counted toward any part of that period. 28 U.S.C. § 2244(d)(2). In contrast, the time during which there is no properly-filed state court application pending is counted against the one-year period. Applications must remain both “properly filed” and “pending” to provide a petitioner with the benefit of statutory tolling. 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 procedural rules governing filings. Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005), citing Artuz v. Bennett, 531 U.S. 4, 8 (2000). Further, a state ...

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