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Carter v. Tanner

United States District Court, E.D. Louisiana

October 10, 2018

KEVIN CARTER
v.
ROBERT TANNER, CCE, WARDEN RAYBURN CORRECTIONAL CENTER

         SECTION “S” (2)

          REPORT AND RECOMMENDATION

          JOSEPH C. WILKINSON, JR., UNITED STATES MAGISTRATE JUDGE

         This 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).[1] For the following reasons, I recommend that the instant petition for habeas corpus relief be DISMISSED WITH PREJUDICE as time-barred.

         I. FACTUAL BACKGROUND

         The petitioner, Kevin Carter, is a convicted inmate incarcerated in the B.B. “Sixty” Rayburn Correctional Center in Angie, Louisiana.[2] On August 23, 2010, Carter was charged in Orleans Parish by bill of information with possession with intent to distribute cocaine.[3] The state court record reflects that police were investigating reports of drug activity at a house located at 2528 Cadiz Street in New Orleans.[4] Carter was arrested after a confidential informant twice purchased drugs from him at that location.

         Carter was tried before a jury on May 22, 2012, and found guilty of the responsive verdict of possession of cocaine.[5] On May 25, 2012, the state trial court sentenced Carter to five years in prison at hard labor.[6]

         At a February 8, 2013 hearing, the state trial court denied several post-trial motions filed by Carter's counsel on January 25, 2013.[7] After waiver of legal delays, Carter pleaded guilty to the State's multiple offender bill charging him as a fourth felony offender.[8] That same day, the court resentenced Carter to 20 years in prison at hard labor as a fourth felony offender.[9]

         On August 7, 2013, in response to mandamus directives from the Louisiana Fourth Circuit, the state trial court denied the motion for appeal previously filed by Carter's counsel.[10] Carter's conviction became final 30 days later, on September 6, 2013, when he did not seek further review of that ruling, the conviction, the habitual offender adjudication or the sentence. See Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (citing Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003) (an appeal is final when the state defendant does not timely proceed to the next available step in an appeal process)).

         On September 24, 2013, Carter signed and submitted a writ application to the Louisiana Fourth Circuit seeking a mandamus order for the state trial court to rule on the motion for appeal.[11] On October 16, 2013, the court denied relief, because the state trial court had already ruled.[12] Carter did not seek review of this ruling.

         Almost two years and eight months later, on June 13, 2016, Carter signed and submitted a writ application to the Louisiana Fourth Circuit seeking an order for the state trial court to rule on a motion to correct an illegal sentence, which Carter claimed to have filed with the state trial court on October 22, 2015.[13] Without ruling, the court forwarded a copy of the motion to correct to the state trial court for a response within 30 days.[14]

         On July 22, 2016, the state trial court granted a hearing on the motion to correct and appointed counsel to represent Carter.[15] In light of this ruling, the Louisiana Fourth Circuit denied as moot Carter's June 13, 2016 writ application.[16]

         On April 17, 2017, in connection with Carter's second mandamus application, the Louisiana Fourth Circuit sent another copy of the motion to correct sentence to the state trial court for a response.[17] On July 19, 2017, the state trial court heard argument from counsel and denied the motion to correct the sentence.[18] In light of this ruling, on August 21, 2017, the Louisiana Fourth Circuit denied as moot Carter's second mandamus application.[19]

         In the meantime, on August 18, 2017, Carter signed and submitted a writ application to the Louisiana Fourth Circuit challenging the state trial court's denial of the motion to correct his sentence.[20] On September 28, 2017, the Louisiana Fourth Circuit denied relief after finding that the motion to correct was an application for post-conviction relief.[21] In doing so, the court held that post-conviction relief was not available for review of sentencing errors, citing La. Code Crim. P. art. 930.3, State ex rel. Melinie v. State, 665 So.2d 1172 (La. 1996), and State v. Cotton, 45 So.3d 1030 (La. 2010).

         Almost seven weeks later, on November 16, 2017, Carter signed and submitted a writ application to the Louisiana Supreme Court seeking review of that ruling.[22] On January 29, 2018, the court declined to consider the writ application, finding that it was not timely filed under La. S.Ct. Rule X§5.[23]

         III. FEDERAL HABEAS PETITION

         On May 16, 2018, the clerk of this court filed Carter's federal habeas corpus petition in which he asserts the following grounds for relief:[24] (1) the state trial court failed to establish the ten-year "cleansing period" related to his prior federal criminal conviction that was used to enhance his sentence through the state habitual felony offender bill; and (2) the state trial court erred when it denied the motion to correct an illegal sentence at a hearing at which petitioner was not present.

         The State filed a response in opposition to Carter's federal petition, asserting that the petition is time-barred and, alternatively, state court review was not properly exhausted in light of his untimely and procedurally improper state post-conviction pleadings.[25]

         III. GENERAL STANDARDS OF REVIEW

         The 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[26] 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 Carter's petition, which, for reasons discussed below, is deemed filed on May 13, 2018.[27] 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)).

         The State asserts and the record establishes that Carter's federal petition was not timely filed. For the reasons that follow, the petition should be dismissed with prejudice as time-barred.

         IV. STATUTE OF LIMITATIONS

         The AEDPA requires that a Section 2254 petition must ordinarily be filed within one year of the date the conviction became final.[28]Duncan v. Walker, 533 U.S. 167, 179-80 (2001). Carter's conviction became final on September 6, 2013, when he did not seek review of the denial of his motion for leave to appeal, the conviction, the habitual offender proceeding or the sentence. Applying Section 2244 literally, Carter had one year from finality of his conviction, until Monday, September 8, 2014, [29] to file his federal habeas corpus petition, which he did not do. His petition must be dismissed ...


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