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Cedars v. McCain

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

October 15, 2018

AUSTIN B. CEDARS D.O.C. # 636862
v.
S.W. McCAIN

         SECTION P

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Austin B. Cedars, who is proceeding pro se in this matter. Cedars is an inmate in the custody of the Louisiana Department of Public Safety and Corrections and is currently incarcerated at Raymond Laborde Correctional Center in Cottonport, Louisiana. S.W. McCain, warden of that facility and respondent in this matter, opposes the petition. Doc. 12. The petitioner has not filed a reply, and his time for doing so has elapsed.

         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.

         I.

         Background

         A. Conviction

         The petitioner (Austin B. Cedars) and codefendant Keenan Wade Cedars were charged in the Fourteenth Judicial District Court, Calcasieu Parish, Louisiana, with one count of second degree murder, a violation of Louisiana Revised Statute § 14:30.1. Doc. 12, att. 2, p. 29. The charge related to the killing of Anthony Batiste on December 2, 2012, when the petitioner was 17 years old and Keenan Cedars was 24 years old. Id.; see State v. Cedars, 2017 WL 3334872, at *1 (La. Ct. App. 3d Cir. Jul. 19, 2017). On May 28, 2015, the petitioner's charge was amended to manslaughter, a violation of Louisiana Revised Statute § 14:31, and the petitioner pleaded guilty to that charge. Doc. 12, att. 2, pp. 21, 30. On August 21, 2015, the petitioner was sentenced to a thirty-year term of imprisonment, below the forty year maximum authorized for manslaughter. Id. at 25; La. Rev. Stat. § 14:31(B). The petitioner filed a motion reconsider sentence, which was heard and denied on December 11, 2015. Doc. 12, att. 2, pp. 27; doc. 12, att. 4, pp. 39-56.

         B. Direct Appeal

         The petitioner then appealed his sentence to the Louisiana Third Circuit Court of Appeal, alleging that his sentence was excessive in light of his age and the circumstances of the offense. Cedars, 2017 WL 3334872 at *1-*2. The Third Circuit reviewed this assignment of error on the merits and affirmed the state district court's ruling. Id. at *2-*5. The petitioner then sought review in the Louisiana Supreme Court, which denied same on April 27, 2018. State v. Cedars, 239 So.3d 838 (La. 2018). It does not appear that he filed a petition for writ of certiorari in the United States Supreme Court. See doc. 4.

         C. Federal Habeas Petition

         The petitioner did not seek state collateral review. Instead, he proceeded directly to federal habeas review through a deficient pro se complaint filed in this court on June 1, 2018.[1] Here he renews his claim of excessive sentence as his sole grounds for relief. See doc. 4, att. 1.

         II.

         Legal Standards

         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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