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Stevens v. Vannoy

United States District Court, M.D. Louisiana

March 22, 2019

WARDELL STEVENS #223780
v.
DARREL VANNOY, 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.

         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. § 2241. There is no need for oral argument or for an evidentiary hearing.

         On or 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.

         Procedural History

         After a 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.

         On or 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.

         Applicable Law and Analysis

         Based 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).

         The 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 untimely.

         Having 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 petitioner's ...


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