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Richcreek v. Unnamed Defendant

United States District Court, W.D. Louisiana, Lafayette Division

March 28, 2019

MATTHEW RICHCREEK #633325
v.
UNNAMED DEFENDANT

         SEC P

          JUNEAU, JUDGE

          REPORT AND RECOMMENDATION

          CAROL B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE

         Pro se petitioner Matthew Richcreek (“Richcreek”), an inmate in the custody of Louisiana&#3');">39;s Department of Corrections, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2254 on November 7, 2018. [Rec. Doc. 1] Petitioner attacks his 2015 conviction for Possession of Pornography Involving Juveniles and subsequent five year sentence imposed thereon by the 15th Judicial District Court, Lafayette Parish. This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. §63');">36 and the standing orders of the Court. For the following reasons it is recommended that the petition be DISMISSED WITH PREJUDICE as time-barred by the provisions of 28 U.S.C. §2244(d).

         Background

         On January 26, 2015, Petitioner, Matthew Richcreek, pled guilty to the charge of Possession of Pornography Involving Juveniles and, in return, was sentenced to five years.

         On January 26, 2017, Petitioner filed an application for post-conviction relief in the 15th Judicial District Court, raising the following claims: (1) Involuntary Confession; and (2) Ineffective Assistance of Counsel. [Rec. Doc. 6, pp. 2-7] The trial court denied his application on March 10, 2017. [Rec. Doc. 1-3');">3, pp. 1-2] On or about April 27, 2017, Petitioner filed a writ application in the Third Circuit Court of Appeal, Docket No. KH-17-00415, which was denied on the showing made on June 23');">3, 2017. [Rec. Doc. 1-3');">3, p. 3');">3] On October 8, 2018, the Louisiana Supreme Court denied his application for Supervisory and/or Remedial Writs in Docket Number 2017-KH-13');">312. [Rec. Doc. 1-3');">3, p. 4]

         Petitioner filed the instant petition for habeas relief on November 7, 2018. He makes the following claims for relief: (1) Involuntary Confession; and (2) Ineffective Assistance of Counsel. [Rec. Doc. 1]

         Law and Analysis

         1. Limitations

          This petition was filed after the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the court must apply the provisions of AEDPA, including the timeliness provisions. Villegas v. Johnson, 3');">3d 467');">184 F.3');">3d 467, 468 (5th Cir. 8/9/1999); In Re Smith, 3');">3d 83');">32');">142 F.3');">3d 83');">32, 83');">34, citing Lindh v. Murphy, 3');">320');">521 U.S. 3');">320, 3');">33');">36 (1997). Title 28 U.S.C. §2244(d)(1)(A) was amended by AEDPA to provide a one-year statute of limitations for the filing of applications for writ of habeas corpus by persons such as petitioner, who are in custody pursuant to the judgment of a State court. This limitation period generally runs from “...the date on which the 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).[1]

         However, the statutory tolling provision of 28 U.S.C. §2244(d)(2) provides that the time during which a properly filed application for post-conviction relief was pending in state court is not counted toward the limitation period. Ott v. Johnson, 3');">3d 510');">192 F.3');">3d 510, 512 (5th Cir. 1999); Fields v. Johnson, 3');">3d 914');">159 F.3');">3d 914, 916 (5th Cir. 1998); 28 U.S.C. §2244(d)(2). Any lapse of time before the proper filing of an application for post-conviction relief in state court is counted against the one-year limitation period. Villegas, 3');">3d 467');">184 F.3');">3d 467, citing Flanagan v. Johnson, 3');">3d 196');">154 F.3');">3d 196, 197 (5th Cir.1998). Federal courts may raise the one-year time limitation sua sponte. Kiser v. Johnson, 3');">3 F.3');">3d 3');">326');">163');">3 F.3');">3d 3');">326 (5th Cir. 1999).

         Petitioner did not file a direct appeal of his conviction and sentence. For AEDPA purposes, petitioner&#3');">39;s judgment of conviction and sentence “became final by ... the expiration of the time for seeking [direct] review” [28 U.S.C. §2244(d)(1)(A)], thirty days following January 26, 2015 (the date that petitioner was sentenced) or, on or about February 25, 2015.[2] Under §2244(d)(1) petitioner had one year from that date, or until February 25, 2016, to file his federal habeas petition.

         Petitioner filed his federal habeas petition on November 7, 2018. He was unable to toll the AEDPA&#3');">39;s limitations period because by the time he launched his first collateral attack on his conviction in January 26, 2017, the limitations period had already expired and could not thereafter be revived. See Villegas,3');">3d 467');">184 F.3');">3d 467. Thus, none of petitioner&#3');">39;s post-conviction pleadings could serve ...


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