United States District Court, W.D. Louisiana, Shreveport Division
MAURICE HICKS, JR. JUDGE.
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 David Fleeks
(“Fleeks”) (#337214). Fleeks is an inmate in the
custody of the Louisiana Department of Corrections,
incarcerated at the Louisiana State Penitentiary in Angola,
Louisiana. Fleeks challenges his conviction and sentence
imposed in the 1st Judicial District Court, Caddo Parish.
Fleek's Petition (Doc. 1) is untimely, it should be
DENIED and DISMISSED WITH PREJUDICE.
was convicted of second-degree murder and second-degree
kidnapping. State v. Fleeks, 26, 720 (La.App. 2 Cir.
3/1/95, 1); 651 So.2d 370, 371. He was sentenced to life
imprisonment. Id. Fleeks's conviction and
sentence were affirmed on appeal. Id. Fleeks did not
seek further review in the Louisiana Supreme Court.
unspecified date, approximately 20 years after his
conviction, Fleeks filed an application for post-conviction
relief in the trial court, which was denied. State ex
rel. Fleeks v. State, 2017-0861 (La. 8/3/18); 250 So.3d
260. The Louisiana Supreme Court also denied writs because
the post-conviction application was untimely filed in the
district court, and Fleeks could not show the applicability
of an exception. State ex rel. Fleeks v. State,
2017-0861 (La. 8/3/18); 250 So.3d 260.
alleges that the indictment in his case was invalid because
the copy provided to him does not have the signature of the
foreperson. (Doc. 1, p. 5). Thus, Fleeks claims his
conviction is illegal.
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 Louisiana Supreme Court on direct
appeal, so his conviction became final for AEDPA purposes on
March 31, 1995, upon the expiration of time for seeking
further review. 28 U.S.C. § 2254(d)(1); La. Sup. Ct. R.
10. Fleeks had one year from that date within which to file a
§ 2254 petition. Fleeks's Petition was not filed
until April 15, 2019. (Doc. 1).
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)). Although
Fleeks filed an application for post-conviction relief, the
application was filed after the one-year limitations period
of the AEDPA expired. Therefore, Fleeks is not entitled to
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).
implies he is entitled to equitable tolling because he had no
post-conviction attorney and little help from inmate counsel.
(Doc. 11, p. 2). Ignorance of the law and pro se status are
common problems for inmates seeking post-conviction relief
and does not constitute “rare and exceptional”
circumstances warranting equitable tolling. See Felder v.
Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000);
Gutierrez v. Cockrell, 45 Fed.Appx. 321 (5th Cir.
2002). Additionally, prisoners have no constitutional right
to either an attorney or “inmate counsel” ...