United States District Court, W.D. Louisiana, Lake Charles Division
AUSTIN B. CEDARS D.O.C. # 636862
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 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.
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.
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.
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.
Federal Habeas Petition
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. Here he renews his claim of excessive
sentence as his sole grounds for relief. See doc. 4,
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 ...