United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.
matter was referred to a United States Magistrate Judge to
conduct hearings, including an evidentiary hearing if
necessary, and to submit proposed findings and
recommendations 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. 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. §
Factual and Procedural Background
petitioner, Malcolm Washington (“Washington”), is
a convicted inmate incarcerated in the Avoyelles Parish
Detention Center in Marksville, Louisiana. On May 23, 2008,
Washington was charged by Bill of Information in Orleans
Parish with one count of second felony possession of
marijuana and one count of possession of a firearm by a
mistrial on January 18, 2012, Washington was tried before a
jury on May 22 and 24, 2012, and found guilty as charged on
both counts. On June 25, 2012, the Trial Court
sentenced Washington to concurrent terms of 10 years in
prison on count one and two years in prison on count
Washington later entered pleas of guilty to the State's
multiple offender bills and was resentenced on October 25,
2012, to serve concurrent sentences of 12 years in prison as
a second felony offender on count two (felon in possession of
a firearm) and as a third felony offender on count one
(second felony possession of marijuana).
conviction was final under federal law thirty (30) days
later, on Monday, November 26, 2012,  because he did not seek
reconsideration of the sentence or move for leave to appeal.
La. Code Crim. P. art. 914; Butler v. Cain, 533 F.3d
314, 317 (5th Cir. 2008) (“[A] conviction becomes final
when the time for seeking further direct review in the state
court expires.”) (quoting Roberts v. Cockrell,
319 F.3d 690, 694 (5th Cir. 2003)).
than three years and four months later, on April 13, 2016,
Washington signed and submitted to the state trial court two
motions to correct his sentence asserting that his multiple
offender sentence constituted double jeopardy. The Trial Court
summarily denied the motions on April 19 and May 3,
2016. The Louisiana Fourth Circuit later
ordered the Trial Court to provide copies of its rulings to
Washington. The copies were mailed to him on June
21, 2016, and his subsequent request for related mandamus
relief was denied as moot.
October 3, 2016, the Louisiana Fourth Circuit denied
Washington's writ application seeking review of the
denial of his motions to correct the sentence. On February
9, 2018, the Louisiana Supreme Court denied Washington's
related writ application. The Court found that he failed to
identify an illegal sentence term, and his application for
post-conviction relief through the motions was untimely under
La. Code Crim. P. art. 930.8 and State ex rel. Glover v.
State, 660 So.2d 1189 (La. 1995) and a sentencing
challenge inappropriate for post-conviction review under La.
Code Crim. P. art. 930.3, State ex rel. Melinie v.
State, 665 So.2d 1172 (La. 1996), and State v.
Cotton, 45 So.3d 1030 (La. 2010). The Court did
not consider Washington's request for
15, 2018, after correction of certain deficiencies, the clerk
of this Court filed Washington's federal petition for
habeas corpus relief in which he asserted that the state
trial court illegally used his prior conviction for felon in
possession of a firearm to enhance his sentence under the
State filed a response in opposition to Washington's
petition asserting that it was not filed timely, and the
claim is otherwise in procedural default. Washington
replied to the State's opposition response asserting that
he did not know about the legal deadlines for seeking federal
habeas relief, and his untimeliness excused because of his
pro se status.
General Standards of Review
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,
applies to this petition, which is deemed filed in this Court
no later than April 27, 2018. The threshold questions on
habeas review under the amended statute are whether the
petition is timely and whether the claim raised by the
petitioner was adjudicated on the merits in state court;
i.e., the petitioner must have exhausted state court
remedies and must not be in “procedural default”
on a claim. Nobles v. Johnson, 127 F.3d 409, 419-20
(5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).
State asserts that the petition was not timely filed under
the AEDPA and that the sole claim asserted is in procedural
default. While the record supports both defenses, for the
following reasons, the Court finds that Washington's
federal habeas petition was not timely filed and must be
dismissed for that reason.
Statute of Limitations
AEDPA requires a petitioner to bring his § 2254 claim
within one year of the date his conviction became
final. Duncan v. Walker, 533 U.S. 167,
176-80 (2001). As stated above, Washington's conviction
was final under federal law on November 26, 2012, when he did
not appeal. Pursuant to § 2244, Washington had one year
from that date, or until November 26, 2013, to timely file a
federal application for habeas corpus relief which he did not
do. Thus, literal application of the statute would bar
Washington's petition as of that date unless he is
entitled to tolling as provided for under the AEDPA.
2244(d)(2) provides that 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. See 28 U.S.C. § 2244(d)(2). In
order for a state post-conviction application to be
considered “properly filed” within the meaning of
§ 2244(d)(2), the applicant must have complied with all
of the State's procedural requirements, such as
timeliness and place of filing. Pace v. DiGuglielmo,
544 U.S. 408, 413-14 (2005); Williams v. Cain, 217
F.3d 303, 306-08 & n.4 (5th Cir. 2000) (quoting Smith
v. Ward, 209 F.3d 383, 384-85 (5th Cir. 2000));
Villegas v. Johnson, 184 F.3d 467, 468-69 (5th Cir.
1999), reh'g denied, 196 F.3d 1259 (5th Cir.
1999). For purposes of the AEDPA, a timeliness ...