United States District Court, W.D. Louisiana, Lake Charles Division
KENNETH RAY BILBO D.O.C. # 355823
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
State Collateral Review
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.” 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.
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.
Federal Habeas Petition
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
Doc. 1, att. 2.
on Habeas Review
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).
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
Exhaustion and ...