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Bilbo v. Vannoy

United States District Court, W.D. Louisiana, Lake Charles Division

September 7, 2018


         SECTION P



         Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Kenneth Ray Bilbo, who is proceeding pro se in this matter. Bilbo is an inmate in the custody of the Louisiana Department of Public Safety and Corrections and is currently incarcerated at the Louisiana State Penitentiary at Angola, Louisiana. Darrel Vannoy, warden of that facility and respondent in this matter, opposes the petition. Doc. 19.

         This petition is referred to the undersigned for review, report, and recommendation in accordance with 28 U.S.C. § 636 and the standing orders of the court. For the following reasons IT IS RECOMMEDED that the petition for writ of habeas corpus be DENIED and DISMISSED WITH PREJUDICE.



         A. Conviction

         Bilbo was indicted in the Fourteenth Judicial District, Calcasieu Parish, Louisiana, on one count of second degree murder, a violation of Louisiana Revised Statute § 14:30.1, for the death of Roderick “Rocky” Syas on or about January 29, 2007. Doc. 19, att. 2, p. 47; see State v. Bilbo, 2010 WL 5027174, at *1 (La. Ct. App. 3d Cir. Dec. 8, 2010) (providing date of killing). Bilbo proceeded to trial by jury and was convicted as charged on September 18, 2009, by a verdict of 10-2. Doc. 19, att. 2, pp. 42, 193-94. He was then sentenced to a mandatory term of life imprisonment without benefit of probation, parole, or suspension of sentence. Doc. 19, att. 4, pp. 128-29.

         B. Direct Appeal

         Bilbo appealed to the Louisiana Third Circuit Court of Appeal raising insufficient evidence as his sole assignment of error. Bilbo, 2010 WL 5027174. The court reviewed the claim on the merits and denied relief. Id. Bilbo then sought review in the Louisiana Supreme Court, which denied same on September 23, 2011. State v. Bilbo, 69 So.3d 1155 (La. 2011). He did not file a petition for writ of certiorari in the United States Supreme Court. Doc. 1, p. 3.

         C. State Collateral Review

         According to the state district court's record, the first filing from the petitioner in that court, after his appeal, is a letter to the clerk of court dated August 30, 2013, and stamped as filed on September 24, 2013. Doc. 19, att. 5, pp. 55-64; see Id. at 1 (chronological index). In his letter Bilbo references an “original application for post conviction relief currently pending in this Honorable Court since January 3, 2012.”[1] Id. at 55. He also asserts that he was informed by a family member that a supplement to that application had not been received, and that he was therefore resubmitting it. Id. He attached his supplemental application, which he had certified on June 4, 2012. See Id. at 56-60. In his supplemental application, Bilbo asserted (1) that he was denied due process when the trial court refused the jury's request to review evidence and would not inform them of the penalty for manslaughter and (2) that he received ineffective assistance from his trial counsel when his attorney failed to object to the court's ruling on those requests. Id. at 56-59. The trial court issued written reasons and an order on February 19, 2014, addressing only the claims raised in the supplemental application and denying relief as to both. Id. at 65-66.

         Bilbo then sought review in the Third Circuit, which determined based on “[i]nformation obtained from the Calcasieu Parish Clerk's Office” that the petitioner had initiated post-conviction proceedings on January 3, 2012, as asserted, with a “Memorandum in Support of Post-Conviction Relief, ” also entitled “Petitioner Requests an Evidentiary Hearing.” Id. at 69. After several months of back and forth, with the Third Circuit ordering the trial court to rule on the original application and the trial court insisting it did not have it, the Third Circuit ordered the trial court to address the claim from the first application, which it summarized as ineffective assistance of counsel based on denial of Bilbo's right to testify on his own behalf. Id. at 71-86. The trial court then denied relief without an evidentiary hearing, holding that Bilbo failed to rebut a presumption that he had waived his right to testify. Id. at 87-88. The petitioner sought writs in the Third Circuit, which denied same. Id. at 90. Finally, he sought review in the Louisiana Supreme Court, which ruled on April 7, 2017. State ex rel. Bilbo v. State, 215 So.3d 217 (La. 2017). That court addressed the petitioner's application as follows:

Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Relator also fails to carry his burden of proof post-conviction with regard to his claim the district court erred in handling the jurors' requests during deliberations. La.C.Cr.P. art. 930.2.

Id. at 218.

         D. Federal Habeas Petition

         The instant petition was filed in this court on May 2, 2017, when Bilbo certifies that he placed the pleading in the prison mailing system. Doc. 1, p. 12. Bilbo raises the following claims for relief:

1. His conviction was based on insufficient evidence.
2. He received ineffective assistance of counsel when his attorney prevented him from testifying on his own behalf.
3. He was denied his right to due process when the trial judge refused to allow the jury to review evidence and information relating to manslaughter.
4. Trial counsel rendered ineffective assistance by failing to object when the court denied jury's request for review of evidence and information on penalty for manslaughter.[2]

Doc. 1, att. 2.


         Standards on Habeas Review

         A. Timeliness

         Federal law imposes a one-year limitation period within which persons who are in custody pursuant to the judgment of a state court may seek habeas review in federal court. 28 U.S.C. § 2244(d)(1). This period generally runs from the date that the conviction becomes final. Id. The time during which a properly-filed application for post-conviction relief is pending in state court is not counted toward the one-year limit. Id. at § 2244(d)(2); Ott v. Johnson, 192 F.3d 510, 512 (5th Cir. 1999). However, any lapse of time before proper filing in state court is counted. Flanagan v. Johnson, 154 F.3d 196, 199 n. 1 (5th Cir. 1998).

         A state application is considered pending both while it is in state court for review and also during intervals between a state court's disposition and the petitioner's timely filing for review at the next level of state consideration. Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001). The limitations period is not tolled, however, for the period between the completion of state review and the filing of the federal habeas application. Rhines v. Weber, 125 S.Ct. 1528 (2005). Accordingly, in order to determine whether a habeas petition is time-barred under the provisions of §2244(d) the court must ascertain: (1) the date upon which the judgment became final either by the conclusion of direct review or by the expiration of time for seeking further direct review, (2) the dates during which properly filed petitions for post-conviction or other collateral review were pending in the state courts, and (3) the date upon which the petitioner filed his federal habeas corpus petition.

         B. Exhaustion and ...

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