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.
§ 2241. There is no need for oral argument or for an
about February 5, 2018, 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. § 2241, attacking his 2011 criminal conviction
and sentence, entered in the Nineteenth Judicial District
Court for the Parish of East Baton Rouge, State of Louisiana
on one count of aggravated rape. The petitioner asserts that
he received ineffective assistance of counsel, and that the
trial court failed to protect his rights.
trial by Jury in May of 2011, the petitioner was found guilty
of one count of aggravated rape. The petitioner was sentenced
to life imprisonment, without benefit of probation, parole,
or suspension of sentence. The petitioner's conviction
and sentence were affirmed by the First Circuit Court of
Appeal on May 3, 2012. See State v. Stevens, 11-1673
(La.App. 1 Cir. 5/3/12), 2012 WL 1564609. The petitioner
sought further review in the Louisiana Supreme Court, which
was denied on November 16, 2012. See State v.
Stevens, 12-1261 (La. 11/16/12), 102 So.3d 31.
about July 18, 2013, the petitioner filed an Application for
Post-Conviction Relief (“PCR”), which was denied
by the trial court on March 10, 2015. The petitioner sought
review of the denial in the First Circuit, which was denied
on October 19, 2015. On March 24, 2017, the petitioner's
application for further review in the Louisiana Supreme Court
was denied. See State ex rel. Stevens v. State,
15-2086 (La. 3/24/17), 213 So.3d 1155. On or about February
5, 2018, the petitioner filed the instant petition.
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 application is
considered to be “pending” both while it is
before a state court for review and also during the interval
after a state court's disposition while the petitioner is
procedurally authorized under state law to proceed to the
next level of state court consideration. See Melancon v.
Kaylo, 259 F.3d 401, 406 (5th Cir. 2001).
petitioner's conviction became final on February 14,
2013, ninety days after denial of his application for
supervisory review in the Louisiana Supreme Court on November
16, 2012 in connection with his direct appeal. See
Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir.
2003). Thereafter, approximately 154 days elapsed
until the petitioner filed his PCR application on July 18,
2013. The petitioner's PCR application remained pending
until the Louisiana Supreme Court denied his writ application
on March 24, 2017. Approximately 318 days elapsed between the
denial of the petitioner's writ application and the
filing of the instant petition on February 5, 2018.
Accordingly, more than a year elapsed during which the
petitioner did not have any properly filed applications for
post-conviction or other collateral review pending before the
state courts, and the petitioner's application is
found the petitioner's application to be untimely, this
Court must dismiss same pursuant to 28 U.S.C. § 2244(d)
unless the petitioner can establish that he is entitled to
equitable tolling. The record does not reflect that there is
any basis for equitable tolling in this case. In this regard,
the one-year federal limitations period is subject to
equitable tolling only “in rare and exceptional
circumstances.” SeeUnited States v.
Patterson,211 F.3d 927, 928 (5th Cir. 2000).
The doctrine of equitable tolling “applies principally
where the plaintiff is actively misled by the defendant about
the cause of action or is prevented in some extraordinary way
from asserting his rights.” Coleman v.
Johnson,184 F.3d 398, 402 (5th Cir. 1999). “A