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Nordgren v. McCain

United States District Court, E.D. Louisiana

April 4, 2018


         SECTION: “H” (1)



         This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH PREJUDICE.

         Petitioner, Gary Nordgren, is a state prisoner incarcerated at the B.B. “Sixty” Rayburn Correctional Center in Angie, Louisiana. On April 23, 2010, he was convicted of aggravated incest under Louisiana law.[1] On September 2, 2010, he was found to be a second offender and was sentenced as such to a term of forty-nine and one-half years imprisonment.[2] On February 10, 2012, the Louisiana First Circuit Court of Appeal affirmed his conviction and habitual offender adjudication; however, the matter was remanded for the district court to consider his pending motion to reconsider sentence.[3] The district court thereafter denied that motion on April 5, 2012.[4]The Louisiana First Circuit Court of Appeal then affirmed his sentence on September 18, 2015.[5]He did not seek direct-review by the Louisiana Supreme Court.

         On or after December 4, 2016, petitioner filed an application for post-conviction relief with the state district court.[6] That application was denied, [7] and he did not seek supervisory review of that denial.

         On December 27, 2017, petitioner filed the instant federal application seeking habeas corpus relief.[8] The state has filed a response arguing that the application is untimely.[9] The state is correct.

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a petitioner is generally required to bring his Section 2254 claims within one (1) year of the date on which his underlying state criminal judgment became “final.” 28 U.S.C. § 2244(d)(1)(A).[10] For AEDPA purposes, a state criminal judgment consists of the conviction and the sentence, and the criminal judgment is therefore not considered “final” until both the conviction and the sentence are final. See Burton v. Stewart, 549 U.S. 147, 156-57 (2007); Scott v. Hubert, 635 F.3d 659, 665-67 (5th Cir. 2011).

         With respect to determining the date of finality, the United States Fifth Circuit Court of Appeals has explained:

The statute of limitations for bringing a federal habeas petition challenging a state conviction begins to run on “the date on which the [state] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). When a habeas petitioner has pursued relief on direct appeal through his state's highest court, his conviction becomes final ninety days after the highest court's judgment is entered, upon the expiration of time for filing an application for writ of certiorari with the United States Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003). However, “[i]f the defendant stops the appeal process before that point, ” ... “the conviction becomes final when the time for seeking further direct review in the state court expires.” Id. at 694; see also Foreman v. Dretke, 383 F.3d 336, 338 (5th Cir. 2004) (Section 2244(d)(1)(A) gives alternative routes for finalizing a conviction: either direct review is completed or the time to pursue direct review expires).
Although federal, not state, law determines when a judgment is final for federal habeas purposes, a necessary part of the finality inquiry is determining whether the petitioner is still able to seek further direct review. See Foreman, 383 F.3d at 338-39. As a result, this court looks to state law in determining how long a prisoner has to file a direct appeal. See Causey v. Cain, 450 F.3d 601, 606 (5th Cir. 2006); Roberts, 319 F.3d at 693. Louisiana Supreme Court Rule X, § 5(a) states that an application “to review a judgment of the court of appeal either after an appeal to that court ... or after a denial of an application, shall be made within thirty days of the mailing of the notice of the original judgment of the court of appeal.”

Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (emphasis added).

         As noted, the Louisiana First Circuit Court of Appeal affirmed petitioner's conviction on February 10, 2012, and then affirmed his sentence on September 18, 2015. He did not seek review of either of those judgments by the Louisiana Supreme Court. Accordingly, the Court finds that petitioner's state criminal judgment became final for AEDPA purposes no later than October 19, 2015, when his thirty-day deadline expired for seeking further direct review of his sentence.[11] His one-year federal limitations period therefore commenced on that date and then expired on October 19, 2016, unless that federal deadline was extended through tolling.

         The Court first considers statutory tolling. The AEDPA provides that the statute of limitations is tolled for the period of time during which a properly filed application for state post-conviction relief or other collateral review attacking a conviction or sentence is pending in state court. 28 U.S.C. § 2244(d)(2). However, petitioner had no such applications pending before the state courts on or before October 19, 2016. Therefore, he clearly is not entitled to statutory tolling.[12]

         The Court must next consider equitable tolling. The United States Supreme Court has expressly held that the AEDPA's statute of limitations is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010). However, “a petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id. at 649 (internal quotation marks omitted); accord Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998) (holding that the AEDPA's statute of limitations can be equitably tolled “in rare and exceptional circumstances”). A petitioner bears the burden of proof to establish entitlement to equitable tolling. Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. ...

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