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Joseph v. 29th Judicial Court

United States District Court, E.D. Louisiana

October 25, 2018

ALCY JOSEPH, JR.
v.
29TH JUDICIAL COURT

         SECTION: “I” (3)

          SUPPLEMENTAL REPORT AND RECOMMENDATION

          DANIEL E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE.

         Petitioner, Alcy Joseph, Jr., filed the instant pro se and in forma pauperis federal application seeking habeas corpus relief pursuant to 28 U.S.C. § 2254.[1] For the following reasons, it is recommended that his application be DISMISSED WITH PREJUDICE.

         Petitioner was convicted of four counts of distribution of cocaine under Louisiana law on October 11, 1995.[2] On May 9, 1996, he was sentenced on each count to a concurrent term of twenty years imprisonment.[3] On January 28, 1997, the Louisiana Fifth Circuit Court of Appeal affirmed those convictions and sentences.[4] The Louisiana Supreme Court then denied his related writ application on September 4, 1998.[5]

         Over the next two decades, petitioner filed various pleadings in the Louisiana state courts concerning those convictions.[6] However, not ultimately satisfied with the results of those efforts, he filed the instant federal habeas corpus application on February 9, 2018.[7]

         On March 23, 2018, the state filed a response to that federal application noting that petitioner was no longer incarcerated. The state further contended that, based on the allegations contained in the application, it appeared as though petitioner's sentences fully expired before he filed the application. The state argued that if petitioner was indeed no longer “in custody, ” then this Court lacked jurisdiction in this matter.[8]

         On March 26, 2018, the undersigned ordered that, on or before April 26, 2018, petitioner file a reply to the state's response showing cause as to why this matter should not be dismissed for lack of subject matter jurisdiction. It was further ordered that if he contended that he was still “in custody” with respect to the challenged convictions, then he must explain his basis for that contention.[9] Because petitioner filed no reply whatsoever in response to that order, the undersigned issued a report recommending that petitioner's application be dismissed for failure to prosecute.[10]

         However, petitioner thereafter filed objections to the Report and Recommendation, stating that he had filed a response to the Court's order and contending that he was still on parole with respect to the challenged convictions.[11] In light of that objection, the United States District Judge entered an Order stating:

IT IS ORDERED that Joseph's objection is SUSTAINED and the report of recommendation of the United States Magistrate Judge is NOT ADOPTED.
IT IS FURTHER ORDERED that, no later than JULY 5, 2018, Joseph shall provide the Court with (1) a copy of the reply he claims to have submitted previously and (2) evidence or documentation showing that he is, in fact, still on parole with respect to his prior state court convictions.
IT IS FURTHER ORDERED that the United States Magistrate Judge shall consider the materials submitted by Joseph, if any, and issue another report and recommendation.
Joseph is cautioned that failure to file the requested materials by the deadline may result in the dismissal of his petition.[12]

         Petitioner attempted to comply with that Order by submitting a computer print-out titled “DPS&C CORRECTION SERVICES MASTER RECORD” and dated November 13, 2013.[13] Because that administrative record was unclear at best, petitioner was then ordered to submit additional evidence or documentation clearly showing that he was still on parole with respect to the challenged convictions.[14] Thereafter, he submitted documentation supporting his contention, [15] and the undersigned's staff confirmed with the Louisiana Board of Pardons and Parole that petitioner is in fact on parole with respect to the challenged convictions until November 18, 2019. Accordingly, the undersigned concluded that petitioner met the habeas corpus custody requirement[16] and ordered the state to file a supplemental answer to petitioner's federal application.[17]

         On September 21, 2018, the state then filed a supplemental answer arguing, inter alia, that petitioner's federal application is untimely.[18] On October 3, 2018, petitioner filed a reply to the state's supplemental response.[19]

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) generally requires that a petitioner bring his § 2254 claims within one (1) year of the date on which his underlying state criminal judgment becomes “final.” 28 U.S.C. § 2244(d)(1)(A).[20] On that point, 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).

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

         As noted, the Louisiana Supreme Court denied petitioner's writ application on direct review on September 4, 1998.[21] Accordingly, his state criminal judgment became final for AEDPA purposes, and his federal limitations period therefore commenced, on December 3, 1998. The federal limitations period then expired one year later, unless that deadline was extended through tolling.

         The Court first considers statutory tolling. Regarding the statute of limitations, the AEDPA expressly provides: “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 shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2).

         As the state notes in its response, petitioner filed numerous state applications of various types after his convictions became final. Although not all of those filings would qualify as applications for “State post-conviction or other collateral review” for the purposes of § 2244(d)(2), [22] many would. Therefore, undoubtedly, at least some portion of the almost two decades which passed after his convictions became final was tolled pursuant to § 2244(d)(2).

         Fortunately, however, this Court need determine which of petitioner's many state court filings actually qualified as applications for “State post-conviction or other collateral review” for the purposes of § 2244(d)(2) or the precise amount of tolling credit to which he would be entitled based on those filings. Although a Court must often engage in such precise calculations in close cases, this is not such a case. On the contrary, where, as here, a petitioner has clearly allowed a period of time in excess of one year to elapse uninterrupted by any pending state court applications, the existence of that period alone renders his federal application untimely. See, e.g., Ortego v. Banks, Civ. Action No. 10-4431, 2011 WL 1791046, at *2 (E.D. La. Apr. 20, 2011), adopted, 2011 WL 1791595 (E.D. La. May 9, 2011);[23] Taylor v. Terrell, Civ. Action No. 07-2890, 2007 WL 3245455, at *2-3 (E.D. La. Nov. 2, 2007).[24]

         In the instant case, the state court record reflects that petitioner had no applications of any kind pending before any state court during the years 2004 through 2009. Accordingly, the elapse of that extended period during which he is unquestionably entitled to no statutory tolling is in and of itself sufficient to render his federal application untimely under the AEDPA's one-year statute of limitations, unless he additionally qualifies for equitable tolling.

         The United States Supreme Court has expressly held that the AEDPA's statute of limitations is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010). However, “a petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id. at 649 (internal quotation marks omitted); accord Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998) (holding that the AEDPA's statute of limitations can be equitably tolled “in rare and exceptional circumstances”). A petitioner bears the burden of proof to establish entitlement to equitable tolling. Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002). ...


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