Green v. Cain

          NOTICE

          ERIN WILDER-DOOMES 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 Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The State has filed a Response in opposition to Petitioner's application, and Petitioner has filed a Traverse to the State's Response. There is no need for oral argument or for an evidentiary hearing. The Court concludes that Petitioner's application is untimely.

         Petitioner, Wayne Green, challenges his 2007 convictions and sentences entered in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana, on one count of aggravated rape and one count of armed robbery. Petitioner contends that (1) he was provided with ineffective assistance of counsel when his trial attorney failed to conduct an adequate investigation and failed to subpoena important defense witnesses, (2) he was provided with ineffective assistance of counsel when his trial attorney failed to file a motion pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to challenge the testimony of the State's DNA expert, (3) he was provided with ineffective assistance of counsel when his trial attorney failed to subpoena one or more expert witnesses to contest the validity of the State's showing relative to DNA and fingerprint evidence, (4) the prosecution engaged in misconduct during closing arguments by referring to evidence that had not been introduced during trial, (5) he was provided with ineffective assistance of counsel when his trial attorney failed to object to the aforementioned prosecutorial misconduct, and (6) he was denied his Sixth Amendment right to confrontation.

         A review of the record reflects that Petitioner was indicted on charges of aggravated rape and armed robbery. After a jury trial conducted in July 2007, Petitioner was convicted on both counts. After the denial of post-trial motions, Petitioner was sentenced to serve life imprisonment in connection with the aggravated rape charge and to fifty (50) years in confinement in connection with the armed robbery charge, with these sentences to be served concurrently and without the benefit of probation, parole or suspension of sentence.

         Petitioner appealed, asserting only a claim that the evidence was insufficient to support the armed robbery conviction. On May 14, 2008, the Louisiana Court of Appeal for the First Circuit affirmed Petitioner's convictions and sentences. See State v. Green, 984 So.2d 966, 2008 WL 2048281 (La.App. 1 Cir. 2008). On or about June 2, 2008, ^[1] Petitioner thereafter filed a pro se application for rehearing in the First Circuit Court, which application was denied on or about June 18, 2008. In the interim, on or about June 13, 2008, ^[2] while the application for rehearing was still pending before the intermediate appellate court, Petitioner filed an application for supervisory review in the Louisiana Supreme Court, which Court denied review without comment on February 13, 2009. See State v. Green, 999 So.2d 1145 (La. 2009). Upon the failure of Petitioner to thereafter file an application for a writ of certiorari in the United States Supreme Court, his convictions and sentences became final on May 14, 2009 upon expiration of the ninety-day period allowed for him to do so. See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003) (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).^[3]

         Nine days short of the one-year anniversary of the finality of his conviction, on or about May 5, 2010, ^[4] Petitioner filed an application for post-conviction relief (“PCR”) in the state trial court, wherein he asserted the claims that are raised herein. Pursuant to Ruling dated April 19, 2013, ^[5] the trial court accepted a Recommendation issued by the state court Commissioner on August 21, 2012 and denied Petitioner's PCR application on substantive grounds, finding the claims therein to be without merit. According to Petitioner, however, the state court clerk's office did not forward a copy of the trial court's April 19, 2013 Ruling until August 5, 2013, more than three months after the Ruling was issued, and Petitioner further asserts that the Ruling was not received in the prison Mailroom until August 8, 2013 and was not personally received by him until August 12, 2013. In support of these assertions, Petitioner has attached as exhibits to the instant habeas corpus application copies of documentation that arguably supports these contentions. See R. Doc. 1-2 at pp. 18-19.

         Upon receipt of the Ruling denying his PCR application in the trial court in August 2013, and accepting for purposes of this Report that a copy thereof was not forwarded to Petitioner until that time, Petitioner then filed, on or about September 3, 2013, four weeks after the mailing of the Ruling and three weeks after Petitioner's alleged receipt thereof, an application for supervisory review before the Louisiana Court of Appeal for the First Circuit.^[6] That Court denied review, without comment, on November 21, 2013. See State v. Green, 2013 WL 12120946 ((La.App. 1 Cir. Nov. 21, 2013). Petitioner also filed a subsequent timely application for further review before the Louisiana Supreme Court, which Court denied review, again without comment, on October 10, 2014. See State ex rel. Green v. State, 150 So.3d 893 (La. 2014).

         Finally, on or about October 14, 2014, four days after the above-referenced writ denial in the Louisiana Supreme Court, Petitioner filed his federal habeas corpus application before this Court. As discussed hereafter, and based on the foregoing procedural recitation, the Court concludes that Petitioner's application should be dismissed as 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 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 subsequent 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 not any properly-filed post-conviction or other collateral review proceedings pending does count toward calculation of the one-year period. Flanagan v. Johnson, 154 F.3d 196, 199 n. 1 (5th Cir. 1998). See also Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998). 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 application is seen to be “pending” both while it is before a state court for review and also during the interval of time after a state court's disposition while the petitioner is procedurally authorized under state law to proceed to the next level of state consideration. Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001).

         In the instant case, as noted above, Petitioner's conviction became final on May 14, 2009, ninety (90) days after denial of his application for supervisory review in the Louisiana Supreme Court in connection with his direct appeal. See Roberts v. Cockrell, supra, 319 F.3d at 694. The one-year time clock then began to run the next day, and it is clear that Petitioner then allowed 355 days of untolled time to elapse, almost a year, before he filed an application for post-conviction relief in the state trial court on May 5, 2010. At that point, Petitioner had only ten (10) days remaining in the one-year limitations period. With the filing of Petitioner's PCR application on May 5, 2010, the limitations period became tolled and remained tolled until the state trial court denied the PCR application on April 19, 2013. The limitations period also remained tolled by operation of law for an additional thirty-day period thereafter, until May 19, 2013, during which time Petitioner was authorized by Louisiana law to seek further review before the intermediate appellate court. This is because Louisiana procedural law provides for a 30-day period to proceed to the next level of state review, see Rule 4-3, Uniform Rules, Louisiana Court of Appeal, and because, as explained ...