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Marshall v. Department of Corrections

United States District Court, E.D. Louisiana

October 26, 2018

JERRELL MARSHALL
v.
DEPARTMENT OF CORRECTIONS

         SECTION: “I” (3)

          REPORT AND RECOMMENDATION

          DANIEL E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE.

         Jerrell Marshall, a state prisoner incarcerated at the St. Tammany Parish Jail in Covington, Louisiana, filed the instant federal application seeking habeas corpus relief. For all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED.

         On May 1, 2017, petitioner was sentenced to the following concurrent terms of imprisonment after pleading nolo contendere to the following crimes under Louisiana law: (1) one year without benefit of probation, parole, or suspension of sentence for the crimes of unauthorized use of a motor vehicle, resisting a police officer, and simple robbery;[1] (2) three years for the crime of distribution of a legend drug (cyclobenzaprine);[2] (3) one year without benefit of probation, parole, or suspension of sentence for the crime of attempted simple escape;[3] and (4) three years for the crime of second degree battery.[4] He did not appeal.

         Petitioner thereafter filed the following series of motions in the Louisiana Twenty-First Judicial District Court, the court in which he was convicted, challenging the manner in which his sentence was being calculated and executed by prison authorities:

1. On or about November 20, 2017, he filed a pro se “Motion: Request for Clarification of Sentence.”[5] On January 31, 2018, the court denied that motion, stating: “Time calculations should be directed to the 19th JDC. All documents from the 21st JDC were forwarded to mover August 29, 2017.”[6]
2. On or about January 29, 2018, he filed a pro se “Motion to Clarify Sentence.”[7] On February 5, 2018, the court denied that motion, stating: “All Document[s] were sent to mover in Sept. 2017, including transcripts, pleadings, minutes, responses, and commitment orders. Mover needs to address his request for time calculations to Dept. of Corrections through the 19th JDC.”[8]
3. On or about February 15, 2018, he filed a pro se “Motion to Clarify Jail Credits and Concurrent Sentence to the Department of Corrections Pursuant to La. C.Cr.P. article 880 and 883.”[9] On February 21, 2018, the court denied that motion, stating: “Denied. Calculations are DOC, not 21st JDC.”[10]
4. On or about April 15, 2018, he filed a pro se “Application for Writ of Habeas Corpus Pursuant to La. C.Cr.P. art. 351 et seq.[11] On April 23, 2018, the court denied that application, stating: “Denied. Issues of time calculation must be addressed with DOC through the 19th JDC.”[12]
5. On or about June 4, 2015, he filed a pro se “Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 et seq.[13] On June 11, 2018, the court denied that motion, stating: “Issues regarding calculation of time are to be filed in the 19th JDC.”[14]
6. On June 6, 2018, he filed a counseled “Petition for Writ of Habeas Corpus.”[15] On June 11, 2018, the court denied that motion, stating: “Issues directing the Dept. of Corrections to calculate time are to be filed in the 19th JDC.”[16]

         Although it is not reflected in the state court record provided by the respondent in this case, this Court has discovered that petitioner sought supervisory review with respect to one of the foregoing rulings in the Louisiana First Circuit Court of Appeal. That court also denied relief, similarly holding:

WRIT DENIED. A claim seeking credit for time served is governed by the Louisiana Corrections Administrative Remedy Procedure (CARP). CARP is the exclusive remedy for an offender to challenge the Department's time computations for his sentence, including credit for time served. Billizone v. Louisiana Dep't of Pub. Safety & Corr., 2017-0002 (La.App. 1st Cir. 6/14/17), 2017 WL 2603486 (unpublished). Venue for judicial review through a CARP proceeding lies exclusively in the 19th JDC. Bellard v. Louisiana Corr. & Indus. Sch., 95-0157 (La. 10/16/95), 661 So.2d 430, 431-32. Accordingly, to obtain judicial review of the Louisiana Department of Public Safety and Corrections calculation of his time served, the petitioner, Jerrell Marshall, must follow the procedures afforded by Louisiana Corrections Administrative Remedy Procedure (CARP), La. R.S. 15:1171 et seq.[17]

         On June 11, 2018, petitioner filed the instant pro se application seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254.[18] He subsequently filed a supplemental petition seeking relief pursuant to 28 U.S.C. §§ 2241 and 2254.[19] The state filed a response arguing that petitioner's federal application is subject to dismissal both because it is untimely and because he failed to exhaust his remedies in the state courts.[20] Petitioner filed a reply to the state's response.[21]

         28 U.S.C. § 2254

         To the extent that petitioner is seeking relief pursuant to 28 U.S.C. § 2254, his application is in fact untimely. 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 state criminal judgment becomes “final.” 28 U.S.C. § 2244(d)(1)(A).[22]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). 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).

         As noted, petitioner pleaded guilty and was sentenced on May 1, 2017. Because he did not file a direct appeal within the thirty days allowed by state law, [23] his conviction and sentence became final no later than May 31, 2017. Accordingly, his period for filing a § 2254 application commenced on that date and then expired one year later on May 31, 2018, 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) (emphasis added).

         However, even if the Court assumes for the purposes of this decision that petitioner's state applications, all of which challenged only prison officials' calculation of his sentences, qualified as applications for “post-conviction or other collateral review” within the meaning of § 2244(d)(2), he still would not be entitled to tolling because those applications were not properly filed - rather, they were all filed in the wrong court. Under Louisiana law, applications challenging sentence calculations must be filed in the Louisiana Nineteenth Judicial District Court for the Parish of East Baton Rouge. La. Rev. Stat. Ann. § 15:571.15 (“Venue in any action in which an individual committed to the Department of Public Safety and Corrections contests the computation of his sentence or sentences, discharge, good time dates, or any action concerning parole shall be in the parish of East Baton Rouge.”); see State ex rel. Morris v. Newell, 412 So.2d 75 (La. 1982) (“La. RS 15:571.15 requires that this petition contesting computation of release date be filed in East Baton Rouge Parish.”). However, as noted, all of petitioner's applications were denied on the basis that they were improperly filed in the Louisiana Twenty-First Judicial District Court for the Parish of Tangipahoa. It is clear that state applications filed in the wrong court do not qualify as “properly filed” for purposes of § 2244(d)(2), and, therefore, do not toll the AEDPA statute of limitations. Sibley v. Culliver, 377 F.3d 1196, 1202-03 (3rd Cir. 2004); Handy v. Everett, 12 Fed. App'x 804, 805 (10th Cir. 2001); Cunningham v. Payne, No. C05-5839, 2006 WL 1875890, at *5 (W.D. Wash. July 5, 2006); Williams v. Crosby, No. 8:03-CV-1574-T-27, 2006 WL 1823437, at *3 (M.D. Fla. June 30, 2006). Accordingly, petitioner is not entitled to statutory tolling.

         The Court must next consider 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 ...


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