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Williams v. Deville

United States District Court, E.D. Louisiana

March 6, 2019

RENE WILLIAMS
v.
KEITH DEVILLE, WARDEN

         SECTION: “G” (3)

          REPORT AND RECOMMENDATION

          DANA M. DOUGLAS, UNITED STATES MAGISTRATE JUDGE

         Petitioner, Rene Williams, a Louisiana state prisoner, filed this federal habeas corpus application seeking relief pursuant to 28 U.S.C. § 2254. For the following reasons, it recommended that the application be dismissed with prejudice as untimely filed.

         On March 19, 2013, petitioner pleaded guilty to possession with intent to distribute heroin and was sentenced to a term of fifteen years imprisonment without benefit of probation or suspension of sentence. He also pleaded guilty to possession of a firearm by a convicted felon and was sentenced on that offense to a concurrent term of fifteen years imprisonment without benefit of parole, probation, or suspension of sentence. He then also pleaded guilty to being a second offender and was resentenced as such on the heroin conviction to a term of twenty-five years imprisonment without benefit of probation or suspension of sentence.[1]

         After petitioner filed an application for post-conviction relief, the state district court granted him an out-of-time appeal on December 2, 2014.[2] On November 19, 2015, the Louisiana Fifth Circuit Court of Appeal then affirmed his convictions and sentences.[3] He did not seek review of that judgment by the Louisiana Supreme Court.

         On or after February 17, 2017, petitioner filed an application for post-conviction relief with the state district court.[4] That application was denied on June 14, 2017.[5] His related writ applications were then likewise denied by the Louisiana Fifth Circuit Court of Appeal on August 16, 2017, [6] and the Louisiana Supreme Court on November 14, 2018.[7]

         On January 23, 2019, petitioner filed the instant federal application seeking habeas corpus relief pursuant to 28 U.S.C. § 2254.[8] The state has filed a response arguing that the application should be dismissed as untimely.[9] The state is correct.

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a petitioner is generally required to bring his Section 2254 claims within one (1) year of the date on which his underlying state criminal judgment became “final.” 28 U.S.C. § 2244(d)(1)(A).[10] With respect to determining the date of finality, the United States Fifth Circuit Court of Appeals has explained:

The statute of limitations for bringing a federal habeas petition challenging a state conviction begins to run on “the date on which the [state] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). When a habeas petitioner has pursued relief on direct appeal through his state's highest court, his conviction becomes final ninety days after the highest court's judgment is entered, upon the expiration of time for filing an application for writ of certiorari with the United States Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003). However, “[i]f the defendant stops the appeal process before that point, ” ... “the conviction becomes final when the time for seeking further direct review in the state court expires.” Id. at 694; see also Foreman v. Dretke, 383 F.3d 336, 338 (5th Cir. 2004) (Section 2244(d)(1)(A) gives alternative routes for finalizing a conviction: either direct review is completed or the time to pursue direct review expires).
Although federal, not state, law determines when a judgment is final for federal habeas purposes, a necessary part of the finality inquiry is determining whether the petitioner is still able to seek further direct review. See Foreman, 383 F.3d at 338-39. As a result, this court looks to state law in determining how long a prisoner has to file a direct appeal. See Causey v. Cain, 450 F.3d 601, 606 (5th Cir. 2006); Roberts, 319 F.3d at 693. Louisiana Supreme Court Rule X, § 5(a) states that an application “to review a judgment of the court of appeal either after an appeal to that court ... or after a denial of an application, shall be made within thirty days of the mailing of the notice of the original judgment of the court of appeal.”

Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (emphasis added).

         As noted, the Louisiana Fifth Circuit Court of Appeal affirmed petitioner's convictions and sentences on direct review November 19, 2015. Accordingly, his state criminal judgment became final for AEDPA purposes no later than December 21, 2015, when his thirty-day deadline expired for seeking further direct review.[11] His one-year federal limitations period therefore commenced on that date and then expired on December 21, 2016, [12] unless that federal deadline was extended through tolling.

         The Court first considers statutory tolling. The AEDPA provides: “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 under this subsection.” 28 U.S.C. § 2244(d)(2). However, petitioner had no such applications pending before the state courts on or before December 21, 2016.[13] Therefore, he clearly is not entitled to statutory tolling.[14]

         The Court must next consider equitable tolling. The United States Supreme Court has expressly held that the AEDPA's statute of limitations is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010). However, “a petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id. at 649 (internal quotation marks omitted); accord Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998) (holding that the AEDPA's statute of limitations can be equitably tolled “in rare and exceptional circumstances”). A petitioner bears the burden of proof to establish entitlement to equitable tolling. Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. ...


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