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.
in Baton Rouge, Louisiana, on.
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. 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.
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.
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
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.
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. On or about July 27, 2017, the
petitioner filed the present application.
Law and Analysis
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 ...