United States District Court, M.D. Louisiana
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
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