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Dolliole v. Kent

United States District Court, E.D. Louisiana

May 14, 2018

MYLES DOLLIOLE
v.
JASON KENT, WARDEN

         SECTION: “F” (5)

          REPORT AND RECOMMENDATION

          MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE

         This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, including an evidentiary hearing, if necessary, and to submit proposed findings 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 entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C.[1] 2254(e)(2). For the following reasons, IT IS RECOMMENDED that the petition for habeas corpus relief be DISMISSED WITH PREJUDICE.

         Procedural History

         Petitioner, Myles Dolliole, is a convicted inmate incarcerated at the Dixon Correctional Institute in Jackson, Louisiana. On May 19, 2014, he was charged by bill of information with one count of aggravated battery with a dangerous weapon, to wit: a handgun, and one count of possession of a firearm by a convicted felon.1 On August 25, 2015, he withdrew his former plea and entered a guilty plea to both counts. He received a five-year sentence on count one and a 10-year sentence on count two. That same date, the State filed a multiple-offender bill of information as to count one charging him as a second-felony offender. Dolliole entered a guilty plea to the multiple bill. The trial court vacated the original sentence and sentenced him as a multiple offender on the aggravated battery count to serve five years imprisonment.[2] He did not appeal the conviction or sentence.

         On August 13, 2016, he signed and submitted for filing an application for post-conviction relief with the state district court.[3] He raised only one claim, that he was subjected to double jeopardy. On or about November 10, 2016, he filed a writ of mandamus with the Louisiana Fourth Circuit Court of Appeal. He requested an order directing the state district court to rule on his pending application for post-conviction relief. On November 29, 2016, the court of appeal issued an order requiring a response from the trial court within 30 days. On December 8, 2016, the state district court denied the application for post-conviction relief.[4] However, having received no response from the district court, the court of appeal issued another order on January 27, 2017, directing the trial court to respond within 30 days. The district court provided proof of compliance. On February 8, 2017, the court of appeal denied Dolliole's writ of mandamus as moot.[5]

         In a letter to the court of appeal dated March 25, 2017, Dolliole stated that he was confused by the ruling that the lower court is in compliance because he “has not been informed of his position in this matter.” He sought to learn whether he was “denied or granted relief.”[6] On March 31, 2017, the court of appeal responded simply that it does not interpret writ dispositions and if dissatisfied with the court's decision he should seek a writ in the Louisiana Supreme Court. On or about April 24, 2017, he filed a supervisory writ application with the Louisiana Supreme Court.[7] On September 6, 2017, the Louisiana Supreme Court refused to consider the writ application because it was not timely filed pursuant to Louisiana Supreme Court Rule X § 5.”[8]

         On September 18, 2017, Dolliole filed his federal application for habeas corpus relief.[9] In his petition, he claims that he was subjected to double jeopardy. The State filed a response, arguing that the federal application is not timely. Alternatively, even if considered timely, the State argues that the claim should be denied on the merits.[10]

         Analysis

         A. Statute of Limitations

         Initially, the Court must determine whether the petition is timely and whether the claim raised by the petitioner was adjudicated on the merits in state court, i.e., the petitioner must have exhausted state-court remedies and the claim must not be in “procedural default.” Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)). The State does not raise procedural default, but does assert that the federal petition was not timely filed. For the following reasons, the Court finds that the application is untimely.

         The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") generally requires that a petitioner bring his Section 2254 claims within one year of the date on which his underlying criminal judgment becomes "final."[11] With regard to 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.

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

         As previously stated, Dolliole pleaded guilty and was sentenced on August 25, 2015. His state criminal judgment became final for AEDPA purposes, and his federal limitations period therefore commenced, on September 24, 2015, when his time for filing an appeal under state law expired.[12] Under a plain reading of the statute, Dolliole then had one year within which to file his federal habeas petition. He did not file his federal habeas petition with this Court until September 18, 2017. Thus, his application must be dismissed as untimely, unless that deadline was extended through tolling.

         Regarding statutory tolling, the AEDPA expressly provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). 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, such as time limitations. Pace v. DiGuglielmo, 544 U.S. 408, 413-14 (2005), citing Artuz v. Bennett, 531 U.S. 4, 8 (2000); see also Williams v. Cain, 217 F.3d 303, 306-308 & n. 4 (5th Cir. 2000). The timeliness consideration in Louisiana, for purposes of the AEDPA, requires application of a prison mailbox rule to state pleadings filed by a prisoner. Causey v. Cain, 450 F.3d 601, 604-05 (5th Cir. 2006). A matter is “pending” for Section 2244(d)(2) purposes “as long as the ordinary state collateral review process is ‘in continuance.' ” Carey v. Saffold, 536 U.S. 214, 219-20 (2002); Will ...


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