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Washington v. State

United States District Court, E.D. Louisiana

November 29, 2018

MALCOLM WASHINGTON
v.
STATE OF LOUISIANA

         SECTION “J” (4)

          REPORT AND RECOMMENDATION

          KAREN WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.

         This 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. § 2254(e)(2) (2006).[1]

         I. Factual and Procedural Background

         The petitioner, Malcolm Washington (“Washington”), is a convicted inmate incarcerated in the Avoyelles Parish Detention Center in Marksville, Louisiana.[2] 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 convicted felon.[3]

         After 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.[4] 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 two.[5] 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).[6]

         Washington's conviction was final under federal law thirty (30) days later, on Monday, November 26, 2012, [7] because he did not seek reconsideration of the sentence or move for leave to appeal. La. Code Crim. P. art. 914;[8] 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)).

         More 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.[9] The Trial Court summarily denied the motions on April 19 and May 3, 2016.[10] The Louisiana Fourth Circuit later ordered the Trial Court to provide copies of its rulings to Washington.[11] The copies were mailed to him on June 21, 2016, and his subsequent request for related mandamus relief was denied as moot.[12]

         On October 3, 2016, the Louisiana Fourth Circuit denied Washington's writ application seeking review of the denial of his motions to correct the sentence.[13] 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).[14] The Court did not consider Washington's request for reconsideration.[15]

         II. Federal Petition

         On June 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 multiple bill.[16]

         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.[17] 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.[18]

         III. General Standards of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, [19] applies to this petition, which is deemed filed in this Court no later than April 27, 2018.[20] 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)).

         The 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.

         IV. Statute of Limitations

         The AEDPA requires a petitioner to bring his § 2254 claim within one year of the date his conviction became final.[21] 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.

         A. Statutory Tolling

         Section 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 ...


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