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Mosby v. Landry

United States District Court, M.D. Louisiana

January 22, 2019

KIRK MOSBY #561203
v.
JEFF LANDRY, ET AL.

          NOTICE

          RICHARD L. BOURGEOIS, JR., UNITED STATES MAGISTRATE JUDGE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

         In 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.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         Signed in Baton Rouge, Louisiana, on.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         This matter comes before the Court on the petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The State has filed an opposition to the petitioner's application, and the petitioner has filed a response. See R. Docs. 5 and 7. There is no need for oral argument or for an evidentiary hearing.

         On or about July 27, 2017, the pro se petitioner, an inmate now 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 2009 in the Eighteenth Judicial District Court for the Parish of Iberville, State of Louisiana, on two counts of aggravated rape.

         Procedural History

         In October of 2009, the petitioner was found guilty of two counts of aggravated rape, and on November 17, 2009 was sentenced to life imprisonment on each count, to be served consecutively. The petitioner thereafter filed an appeal, and on September 10, 2010 his conviction and sentence were affirmed by the Louisiana First Circuit Court of Appeal. See State v. Mosby, 10-0508 (La.App. 1 Cir. 9/10/10), 46 So.3d 285. The petitioner sought further review which was denied by the Louisiana Supreme Court on March 4, 2011. See State v. Mosby, 10-2306 (La. 3/4/11), 58 So.3d 470.

         On or about September 15, 2011, the petitioner filed his first application for post-conviction relief (“PCR”), which was denied by the trial court. 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 February 7, 2014. See State ex. rel. Mosby v. State, 13-1655 (La. 2/7/14), 131 So.3d 855.

         On or about May 12, 2015, the petitioner field his second application for post-conviction relief, which was denied by the trial court. 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 May 19, 2017. See State ex. rel. Mosby v. State, 16-1151 (La. 5/19/17), 219 So.3d 1076.[1] On or about July 27, 2017, the petitioner filed the present application.

         Applicable Law and Analysis

         Based upon the foregoing, this Court concludes, as asserted by the State of Louisiana, 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 ...


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