United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR.UNITED STATES MAGISTRATE JUDGE.
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations therein. Failure to
file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being
served will bar you, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
matter comes before the Court on the petitioner's
application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. There is no need for oral argument or for an
30, 2017, the pro se petitioner, an inmate confined
at the Louisiana State Penitentiary, Angola, Louisiana, filed
this habeas corpus proceeding pursuant to 28 U.S.C. §
2254, attacking his criminal conviction and sentence entered
in 2007 in the Eighteenth Judicial District Court for the
Parish of Iberville, State of Louisiana. The petitioner
asserts that he received ineffective assistance of counsel.
conclusion of a jury trial, the petitioner was found guilty
of two counts of molestation of a juvenile. On December 3,
2007, the petitioner was sentenced to pay a $10, 000 fine on
each count, and to fifteen years imprisonment on each count,
to be served consecutively.
petitioner appealed his conviction or sentence, which were
affirmed on September 23, 2008. See State v. Burtis,
08-373 (La.App. 1 Cir. 9/23/08), 2008 WL 4332529. Thereafter,
the petitioner sought further review, which was denied by the
Louisiana Supreme Court on May 15, 2009. See State v.
Burtis, 08-2420 (La. 5/15/09), 8 So.3d 581.
April 15, 2011, the petitioner filed a counseled Application
for Post-Conviction Relief, which was denied by the trial
court on June 4, 2012. The petitioner sought further review
of the denial of his PCR application, which was denied by the
First Circuit, and later by the Louisiana Supreme Court on
January 18, 2013. See State v. Burtis, 12-2412 (La.
1/18/2013), 107 So.3d 630.
petitioner filed a second Application for Post-Conviction
Relief on or about April 30, 2013, which was denied by the
trial court on July 22, 2015. The petitioner sought further
review of the denial of his second PCR application, which was
denied by the First Circuit, and later by the Louisiana
Supreme Court on April 7, 2017. See State ex rel. Burtis
v. State, 15-2200 (La. 4/7/17), 215 So.3d 228. On June
30, 2017, the petitioner filed the present application.
Law and Analysis
upon the foregoing, this Court concludes that the
petitioner's application is untimely. In this regard,
pursuant to 28 U.S.C. § 2244(d), there is a one-year
statute of limitations applicable to federal habeas corpus
claims brought by prisoners in state custody. This
limitations period begins to run on the date that the
judgment becomes final through the conclusion of direct
review or through the expiration of time for seeking such
review. 28 U.S.C. § 2244(d)(1)(A). As provided by the
referenced statute, the time during which a properly filed
application for state post-conviction or other collateral
review is thereafter pending before the state courts with
respect to the pertinent judgment or claim shall not be
counted toward any part of the one-year limitations period.
28 U.S.C. § 2244(d)(2). However, the time during which
there are no properly filed post-conviction or other
collateral review proceedings pending does count toward
calculation of the one-year period. To be considered
“properly filed” for purposes of §
2244(d)(2), an application's delivery and acceptance must
be in compliance with the applicable laws and rules governing
filings. Pace v. DiGuglielmo, 544 U.S. 408, 413
(2005), citing Artuz v. Bennett, 531 U.S. 4, 8
(2000). Further, a properly-filed state ...