United States District Court, W.D. Louisiana, Alexandria Division
DEE D. DRELL MAGISTRATE JUDGE PEREZ-MONTES
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge
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.
petition is untimely and should be dismissed.
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.
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).
Law and Analysis
Stanley's § 2254 petition is
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).
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).
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)).
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.
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. ...