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Young v. Goodwin

United States District Court, E.D. Louisiana

October 22, 2018

ORLANDO YOUNG
v.
JERRY GOODWIN, WARDEN

         SECTION: “E” (5)

          REPORT AND RECOMMENDATION

          MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE

         This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, 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 in the United States District Courts. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). For the following reasons, IT IS RECOMMENDED that the petition for habeas corpus relief be DISMISSED WITH PREJUDICE as untimely.

         Procedural History

         Petitioner, Orlando Young, is a convicted inmate currently incarcerated at the David Wade Correctional Center in Homer, Louisiana. In December 2011, he was charged with possession of over 28 grams of cocaine.[1] On June 19, 2012, a jury found him guilty as charged.[2] On June 22, 2012, he was sentenced to serve a term of 20 years, the first five years without the benefit of probation, parole or suspension of sentence. The trial court also imposed a $50, 000 fine and ordered him to pay a $35.00 IDB fee.[3] That same day, the State filed a multiple-offender bill of information charging him as a second-felony offender. Young entered a waiver of rights and plea of guilty to the multiple bill. The trial court vacated the original sentence and resentenced him as a second-felony offender to a term of 20 years without benefit of probation or suspension of sentence, along with imposition of the same fine and fee.[4]

         Young moved for an out-of-time appeal, which was granted.[5] On direct appeal, he asserted that the trial court erred in denying his motion to suppress the evidence and statements. On April 9, 2014, the Louisiana Fifth Circuit Court of Appeal affirmed his conviction and adjudication as a second-felony offender.[6] On December 8, 2014, the Louisiana Supreme Court denied his application for writ of certiorari.[7]

         On December 3, 2015, counsel for Young filed an application for post-conviction relief on his behalf in the state district court.[8] In that application, he raised the following claims: (1) trial counsel was ineffective for failing to request the identity of the confidential informant who supplied the information used to obtain the search warrant; (2) the bill of information was defective and counsel was ineffective for not filing a motion to quash it; (3) trial counsel was ineffective for failing to sufficiently cross-examine Detective Wimberly about the Miranda warning; (4) a conflict of interest existed between Young and his trial counsel; and (5) the evidence was insufficient to support the conviction. On February 16, 2016, the state district court denied his application for post-conviction relief.[9] The district court denied the ineffective-assistance-of-counsel claims on the merits and rejected the sufficiency claim and the defective bill of information claim as procedurally barred under Louisiana Code of Criminal Procedure article 930.4(C), because Young failed to pursue the claims on appeal. The record shows that the order was personally served on Young's counsel two days later, on February 18, 2016, and also on Young via domiciliary service at the prison on February 26, 2016.

         On April 1, 2016, counsel of record on behalf of Young filed a Notice of Intent to Seek Supervisory Writs from the February ruling.[10] In the notice, counsel explained that although she was served with the district court's ruling denying post-conviction relief two days after the order was signed, she had not been retained to file a supervisory writ application on his behalf, and that Young himself never received the ruling and only learned about it through counsel on March 31, 2016. Despite counsel's suggestion that the record contained no proof of service on Young, the district court noted clear indication of personal service on Young on February 26, 2016, and denied the notice of intent to seek writs from the February 16, 2016 ruling as untimely.[11] On April 22, 2016, counsel for Young filed a Notice of Intent to Seek Supervisory Writs from the ruling of April 6, 2016, which rejected Young's notice of intent from the February 16, 2016 ruling (denying post-conviction relief) as untimely. The district court granted the request and ordered writs returnable to the state circuit court of appeal on or before May 25, 2016.[12] On May 25, 2016, counsel for Young filed a supervisory writ application with the Louisiana Fifth Circuit Court of Appeal. The application was denied on June 23, 2016.[13] The appellate court ruled that under Rule 4-3 of the Uniform Rules-Courts of Appeal, the first notice of intent was filed untimely, well-beyond 30 days from the district court's February 16, 2016 order, and Young failed to show that the delay in filing was not due to his fault since the record showed that he and his counsel were both served with the order in February. In denying relief, the court of appeal concluded that “on the showing made, we find that the trial court did not err in its denial of relator's April 1, 2016 Notice of Intent to review the trial court's February 16, 2016 ruling on relator's application for post-conviction relief as untimely.” On July 22, 2016, Young's counsel filed a related supervisory writ application with the Louisiana Supreme Court.[14] That writ application was likewise denied on January 9, 2018. In a per curiam, the Louisiana Supreme Court found that Young “fails to show he was denied access to the courts by an arbitrary and unjustified enforcement of the uniform rules governing the filing of applications in the court of appeal, and thus shows no error.”[15]

         On March 7, 2018, Young filed his federal application for habeas corpus relief in which he raises the same claim asserted on direct appeal regarding the improper denial of his motion to suppress, as well as the claims for relief raised in the state courts on collateral review.[16] The State's response argues that the federal application is untimely and that the majority of his claims (with the exception of the sole claim raised on direct appeal) are unexhausted and procedurally defaulted because he can no longer assert them in the state courts.[17] Finally, the State notes that even if the Fourth Amendment/suppression claim raised on direct appeal was not untimely, it is not cognizable on federal habeas review.

         Facts

         On direct appeal, the Louisiana Fifth Circuit summarized the facts adduced at trial as follows:

On November 8, 2011, Officer David Schlueter of the Kenner Police Department Narcotics Investigations Section, and other officers initiated an investigation of a residence located at 904 27th Street in Kenner after receiving information from a confidential informant (“CI”) that a black male, with several tattoos on his neck, face, and arms, was selling crack cocaine from that residence. They followed up on the information they received by conducting a controlled buy of crack cocaine from 904 27th Street utilizing the CI.
The controlled buy was conducted outside the residence during nighttime hours. The CI purchased an off-white, rock-like object, which field tested positive for cocaine. Because it was dark, the officers were not able to identify the black male who sold cocaine to the CI. After the controlled buy, Officer Schlueter obtained a search warrant for the residence located at 904 27th Street, authorizing the search of the premises and anyone located on or in the premises.
The search warrant was executed on November 17, 2011. The officers entered the residence and found two adults, defendant and Precious Robinson, and seven children in the premises. Defendant was lying on a couch in the living room when officers entered. After the residence was secured, Detective Wimberly brought defendant to the rear bedroom while Ms. Robinson and the children remained in the living room.
Detective Wimberly advised defendant of his Miranda rights and defendant stated that he understood his rights and waived them. Detective Wimberly advised defendant that this was a narcotics investigation and that they had a search warrant for the residence. Detective Wimberly told defendant that since Ms. Robinson and the children were present, it might be better to cooperate to save the officers from having to “tear through the house.” According to Detective Wimberly, defendant advised him that Ms. Robinson had nothing to do with the investigation and that he did have narcotics in the house. Defendant led Detective Wimberly to the couch in the living room and pointed to the pullover sweater on the couch and stated, “It's in there.” Detective Wimberly testified that defendant told him that the sweater belonged to him. Detective Wimberly picked up the sweater, reached into the pocket, and recovered a clear bag of off-white, rock-like objects, consistent with crack cocaine. Because defendant showed Detective Wimberly where the narcotics were located, the officers did not search anywhere else in the residence. Defendant was arrested and taken into custody.[18]

         Analysis

         A. Statute of Limitations

         The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") generally requires that a petitioner bring his Section 2254 claims within one (1) year of the date on which his underlying criminal judgment becomes "final." 28 U.S.C. § 2244(d)(1)(A).[19] With regard to finality, the United States Fifth Circuit Court of Appeals has explained:

The statute of limitations for bringing a federal habeas petition challenging a state conviction begins to run on "the date on which the [state] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). When a habeas petitioner has pursued relief on direct appeal through his state's highest court, his conviction becomes final ninety days after the highest court's judgment is entered, upon the expiration of time for filing an application for writ of certiorari with the United States Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003). However, "[i]f the defendant stops the appeal process before that point," ... "the conviction becomes final when the time for seeking further direct review in the state court expires." Id. at 694; see also Foreman v. Dretke, 383 F.3d 336, 338 (5th Cir. 2004) (Section 2244(d)(1)(A) gives alternative routes for finalizing a conviction: either direct review is completed or the time to pursue direct review expires).
Although federal, not state, law determines when a judgment is final for federal habeas purposes, a necessary part of the finality inquiry is determining whether the petitioner is still able to seek further direct review. See Foreman, 383 F.3d at 338-39. As a result, this court looks to state law in determining how long a prisoner has to file a direct appeal. See Causey v. Cain, 450 F.3d 601, 606 (5th Cir. 2006); Roberts, 319 F.3d at 693.

Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008).

         Young's state criminal judgment became final, for federal limitations purposes, on March 9, 2015 when his time limit expired for seeking review in the United States Supreme Court (i.e., 90 days after the Louisiana Supreme Court's decision denying his writ of certiorari).[20] Under a plain reading of the statute, the AEDPA one-year limitations period commenced on that date and expired on March 9, 2016, unless that deadline was extended through tolling.

         B. Statutory Tolling

         The one-year limitations period is subject to statutory tolling for the time during which “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). A matter is “pending” for Section 2244(d)(2) purposes “as long as the ordinary state collateral review process is ‘in continuance.' ” Carey v. Saffold, 536 U.S. 214, 219-20, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002); see also Williams v. Cain, 217 F.3d 303 (5th Cir. 2000) (a matter is ...


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