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Stanley v. Warden

United States District Court, W.D. Louisiana, Alexandria Division

September 4, 2018

JOHN STANLEY, Petitioner
v.
WARDEN, Respondent

          JUDGE DEE D. DRELL MAGISTRATE JUDGE PEREZ-MONTES

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes United States Magistrate Judge

         Before the Court is a petition for writ of habeas corpus (28 U.S.C. § 2254) filed by pro se Petitioner John Stanley (“Stanley”) (#315609). Stanley is an inmate in the custody of the Louisiana Department of Corrections, incarcerated at the Winn Correctional Center in Winnfield, Louisiana. Stanley challenges his conviction and sentence imposed in the 9th Judicial District Court, Rapides Parish.

         Stanley's petition is untimely and should be dismissed.

         I.Background

         Stanley was convicted of aggravated burglary and sentenced to 20 years of imprisonment. State v. Stanley, 2008-1484 (La.App. 3 Cir. 5/6/09). Stanley's conviction and sentence were affirmed on appeal. Id. Stanley did not seek further review in the Louisiana Supreme Court.

         Stanley filed applications for post-conviction relief on May 31, 2011 and January 17, 2012. (Doc. 1, pp. 3, 11). The applications were denied. Doc. 1-2, p. 23-24. According to Stanley's exhibits, the appellate court denied supervisory writs on June 28, 2013. (Doc. 1-2, p. 20).

         II. Law and Analysis

         A. Stanley's § 2254 petition is untimely.

         In 1996, as part of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Congress enacted 28 U.S.C. § 2244(d), which provides a one-year statute of limitations for filing applications for writs of habeas corpus by persons in custody pursuant to the judgment of a state court. This limitations period generally runs from “the date on which the 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). Federal courts may raise the one-year limitations period sua sponte. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).

         Because he did not seek writs in the Louisiana Supreme Court, Stanley's conviction became final for AEDPA purposes on June 5, 2009, upon the expiration of the time for seeking further direct review. 28 U.S.C. § 2254(d)(1). Thus, Stanley had one year from that date within which to file a § 2254 petition. Stanley's petition was not filed until July 23, 2018. (Doc. 1).

         Although the statutory tolling provision of § 2244(d)(2) provides that the time during which a properly filed application for post-conviction relief is pending in state court is not counted toward the limitations period, Ott v. Johnson, 192 F.3d 510, 512 (5th Cir. 1999); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998), any lapse of time before the proper filing of an application for post-conviction relief in state court is counted against the one-year limitations period, Villegas v. Johnson, 184 F.3d 467, 472 (5th Cir. 1999) (citing Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998)).

         Stanley's application for post-conviction relief was filed on May 31, 2011, well after the one-year limitations period of the AEDPA had expired. Therefore, Stanley is not entitled to statutory tolling. Even if Stanley was entitled to tolling while his post-conviction applications were pending, the petition would still be time-barred because more than five years have passed since the completion of those proceedings.

         The United States Supreme Court has expressly held that the AEDPA's statute of limitations is subject to equitable tolling. See 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 invoke equitable tolling. See Alexander v. ...


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