United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE
matter was referred to a United States Magistrate Judge to
conduct hearings, 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. Upon review
of the entire record, I have determined that a federal
evidentiary hearing is unnecessary. See 28 U.S.C.
§ 2254(e)(2). For the following reasons, I recommend
that the instant petition for habeas corpus relief be
DISMISSED WITH PREJUDICE as time-barred.
petitioner, William Schultz, is a convicted inmate currently
incarcerated in the Dixon Correctional Institute in Jackson,
Louisiana. On June 27, 2013, Schultz was charged by
bill of information in St. Tammany Parish with two counts of
sexual battery of 5-year-old AV and two counts of sexual
battery of 7-year-old KW. Schultz initially entered a not guilty
plea to the charges that same day. However, on April 22, 2014,
during the second day of his jury trial, Schultz withdrew his
not guilty plea and pled guilty to all four
counts. At the same hearing, the court adjudicated
him a second felony offender and sentenced him to serve 50
years in prison on each count concurrently without benefit of
parole, probation, or suspension of sentence.
conviction became final thirty (30) days later, on May 22,
2014, when he did not seek reconsideration of the sentence or
pursue a direct appeal. Roberts v. Cockrell, 319
F.3d 690, 694-95 (5th Cir. 2003) (under federal habeas law, a
conviction is final when the state defendant does not timely
proceed to the next available step in the state appeal
process); see Cousin v. Lensing, 310 F.3d 843, 845
(5th Cir. 2002) (petitioner's guilty pleas became final
at the end of the period for filing a notice of appeal under
La. Code Crim. P. art. 914).
meantime, on May 20, 2014, Schultz filed a motion with the
state trial court seeking to withdraw his guilty
plea. The court summarily denied the motion on
May 22, 2014, and notice of the ruling eventually was issued
to Schultz on June 17, 2014.Schultz did not seek review of
eleven months later, on May 12, 2015, Schultz signed and
submitted to the state trial court an application for
post-conviction relief asserting three claims: (1) The state
trial court erred when it accepted an infirm guilty plea
without a showing that it was intelligently and knowingly
made. (2) He was denied effective assistance of counsel
because counsel did not object to the lack of evidence and
failed to investigate to avoid untruthful testimony from
witnesses at trial. (3) He requested a review for errors
patent. (4) The trial court imposed an excessive sentence.
30, 2015, the state trial court denied relief, finding the
first two claims meritless, and the third and fourth claims
procedurally improper for post-conviction review, citing La.
Code Crim. P. art. 930.3 and State ex rel. Melinie v.
State, 665 So.2d 1172 (La. 1996). Schultz did
not seek review of this ruling.
than five months later, on December 2, 2015, Schultz signed
and submitted a second application for post-conviction relief
asserting that he received ineffective assistance of counsel
when his counsel failed to assert an insanity defense, move
for severance of the counts, object or move to reconsider the
sentence, or file a motion to suppress the
confession. He also argued that the state trial
court erred when it denied his motion to withdraw the guilty
December 21, 2015, the state trial court denied relief,
finding the application repetitive under La. Code Crim. P.
art. 930.4 and otherwise improper for post-conviction review
under La. Code Crim. P. art. 930.3. Notice of this ruling was
issued to Schultz on December 29, 2015.
March 21, 2016, the Louisiana First Circuit denied
Schultz's related writ application without stated
reasons. On September 6, 2017, the Louisiana
Supreme Court denied Schultz's writ application, finding
no showing of error in the state trial court's dismissal
of the claims as repetitive and successive, citing La. Code
Crim. P. art. 930.4 and State ex rel. Rice v. State,
749 So.2d 650 (La. 1999).
FEDERAL HABEAS PETITION
February 15, 2018, the clerk of this court filed
Schultz's federal habeas corpus petition in which he
asserts the he was denied effective assistance of counsel
when his counsel failed to seek a mental evaluation and
present expert testimony about his mental capacity to stand
trial and intelligently and knowingly enter the guilty
plea. The State filed a response in opposition
to Schultz's federal petition asserting that the petition
GENERAL STANDARDS OF REVIEW
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,
comprehensively revised federal habeas corpus legislation,
including 28 U.S.C. § 2254. The AEDPA went into effect
on April 24, 1996 and applies to habeas petitions filed
after that date. Flanagan v. Johnson, 154 F.3d 196,
198 (5th Cir. 1998) (citing Lindh v. Murphy, 521
U.S. 320 (1997)). The AEDPA therefore applies to
Schultz's petition, which, for reasons discussed below,
is deemed filed on February 12, 2018. The threshold
questions in habeas review under the amended statute are
whether the petition is timely and whether petitioner's
claims were adjudicated on the merits in state court;
i.e., the petitioner must have exhausted state court
remedies and must not be in “procedural default”
on a claim. Nobles v. Johnson, 127 F.3d 409, 419-20
(5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).
State asserts and the record establishes that Schultz's
federal petition was not timely filed. Schultz's petition
should therefore be dismissed as time-barred.
STATUTE OF LIMITATIONS
AEDPA requires that a Section 2254 petition must ordinarily
be filed within one year of the date the conviction became
final. Duncan v. Walker, 533 U.S. 167,
179-80 (2001). Schultz's conviction became final on May
22, 2014, which was 30 days after his guilty plea and
sentencing, which he did not appeal. Applying Section 2244
literally, Schultz had one year from finality of his
conviction, until May 22, 2015, to file his federal habeas
corpus petition, which he did not do. His petition must be
dismissed as untimely, unless the one-year statute of
limitations was interrupted or otherwise tolled in either of
the following two ways recognized in the applicable law.
the United States Supreme Court has held that AEDPA's
one-year statute of limitations period in Section 2244(d)(1)
may be equitably tolled only when the petitioner has pursued
his rights diligently and rare or extraordinary circumstances
exist which prevented timely filing. Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005); Fisher v.
Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert.
denied, 531 U.S. 1164 (2001); Cantu-Tzin v.
Johnson, 162 F.3d 295, 299 (5th Cir. 1998); Davis v.
Johnson, 158 F.3d 806, 810 (5th Cir. 1998), cert.
denied, 526 U.S. 1074 (1999). Equitable tolling is
warranted only in situations where the petitioner