United States District Court, W.D. Louisiana, Alexandria Division
DEE D. DRELL
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge
the Court is a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254 filed by pro se Petitioner Kenneth Bell,
Sr. (“Bell”) (#79985). Bell is an inmate in the
custody of the Louisiana Department of Corrections,
incarcerated at the Raymond Laborde Correctional Center
(“RLCC”) in Cottonport, Louisiana. Bell
challenges his conviction and sentence imposed in the 9th
Judicial District Court, Rapides Parish.
Bell's Petition (Doc. 1) is untimely, it should be DENIED
and DISMISSED WITH PREJUDICE.
was convicted of second-degree manslaughter and sentenced to
20 years at hard labor. Bell appealed, claiming that his
sentence was excessive. State v. Bell, 2012-195
(La.App. 3 Cir. 6/6/12), 91 So.3d 1279, 1280, writ denied
sub nom. State ex rel. Bell v. State, 2012-2363 (La.
3/15/13), 109 So.3d 380. Bell's conviction and sentence
filed an Application for Post-Conviction Relief on June 17,
2015, which was denied. (Doc. 11, p. 2; Doc. 13, p. 34). The
appellate court denied Bell's writ application because
the post-conviction application was untimely filed, and Bell
did not meet any of the exceptions to the time limitation set
forth in article 930.8 of the Louisiana Code of Criminal
Procedure. (Doc. 13, p. 38). State v. Bell, 15-00758
(La.App. 3 Cir. 1/14/16). The Louisiana Supreme Court also
denied writs because the post-conviction application was
untimely filed in the district court, and Bell could not show
the applicability of an exception. State ex rel. Bell v.
State, 2017-1428 (La. 9/21/18), 252 So.3d 892.
Law and Analysis
1996, as part of the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), Congress enacted 28 U.S.C.
§ 2244(d), which provides a one-year statute of
limitations for filing applications for writs of habeas
corpus by persons in custody pursuant to the judgment of a
state court. The limitations 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). Federal courts may raise the one-year
limitations period sua sponte. See Kiser v. Johnson,
163 F.3d 326 (5th Cir. 1999).
did not seek review in the United States Supreme Court, so
his conviction became final for AEDPA purposes on June 13,
2013, 90 days after the ruling of the Louisiana Supreme
Court. 28 U.S.C. § 2254(d)(1). Bell had one year from
that date within which to file a § 2254 petition.
Bell's Petition was not post-marked until October 19,
2018. (Doc. 1).
the statutory tolling provision of § 2244(d)(2) provides
that the time during which a properly filed application for
post-conviction relief is pending in state court is not
counted toward the limitations period, Ott v.
Johnson, 192 F.3d 510, 512 (5th Cir. 1999), any lapse of
time before the proper filing of an application for
post-conviction relief in state court is counted against the
one-year limitations period, Villegas v. Johnson,
184 F.3d 467, 472 (5th Cir. 1999) (citing Flanagan v.
Johnson, 154 F.3d 196, 199 (5th Cir. 1998)).
Application for Post-Conviction Relief was filed on June 17,
2015, after the one-year limitations period of the AEDPA had
expired. Therefore, Bell is not entitled to statutory
AEDPA's statute of limitations is subject to equitable
tolling. See 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); 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”). 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 bears the burden of proof to invoke
equitable tolling. See Alexander v. Cockrell, 294
F.3d 626, 629 (5th Cir. 2002).
alleges he is entitled to equitable tolling because he was
transferred from Rapides Parish to Hunt Correctional Center
and RLCEE between 2013 and 2016 “without any legal
court documents or transcripts, without access to competent
inmate or otherwise legal assistance or reasonably adequate
law libraries or materials.” (Doc. 11, p. 2). However,
ignorance of the law, pro se status, and separation from
legal materials during prison transfers are common problems
for inmates seeking post-conviction relief and do not
constitute “rare and exceptional” circumstances
warranting equitable tolling. Clark v. Thaler,
4:13-CV-244, 2013 WL 1943309, at *2 (N.D. Tex. May 10, 2013);
Josey v. Davis, 4:15-CV-618, 2016 WL 5921825, at *2
(N.D. Tex. Oct. 11, 2016) (transfers between prisons are
common problems among inmates who are trying to pursue
post-conviction relief and do not support a claim for
equitable tolling); Gross v. Thaler, 4:10-CV-677-A,
2010 WL 5093169, at *2 (N.D. Tex. Dec. 7, 2010) (transfers do
not support a claim for ...