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Videau v. Vannoy

United States District Court, E.D. Louisiana

May 28, 2019

MICHAEL VIDEAU
v.
DARREL VANNOY, WARDEN

         SECTION: “F” (3)

          REPORT AND RECOMMENDATION

          DANA M. DOUGLAS, UNITED STATES MAGISTRATE JUDGE

         This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH PREJUDICE.

         Petitioner, Michael Videau, is a state prisoner incarcerated at the Louisiana State Penitentiary, Angola Louisiana. On May 3, 2012, Videau was indicted in the Parish of Jefferson for two counts of aggravated rape (counts one and four), one count of aggravated oral sexual battery of a juvenile under the age of twelve (count two), one count of molestation of a juvenile (count three), one count of indecent behavior with a juvenile by a lewd or lascivious act upon or in the presence of a juvenile (count five), one count of sexual battery upon a juvenile under the age of thirteen (count six), and one count of sexual battery upon a juvenile under the age of thirteen (count seven).[1] Videau was tried before a jury on January 8, 9 and 10, 2013, and was found guilty of the lesser offense of sexual battery as to count one and guilty as charged on counts two through seven.[2] Videau's motion for new trial was denied.[3] The court sentenced Videau to ten years as to count one, twenty years as to count two, fifteen years as to count three, life imprisonment as to count four, twenty-five years as to count five, and ninety-nine years as to counts six and seven, each sentence to be served at hard labor and concurrently, and the sentence as to count four to be served without the benefit of parole or suspension of sentence.[4]

         Videau filed a counseled direct appeal to the Louisiana Fifth Circuit.[5] Videau filed a pro se supplemental brief.[6] The court affirmed petitioner's convictions on December 27, 2013, but remanded the matter to the trial court for purposes of providing Videau with written notice of his sex offender notification and registration requirements and the prescriptive periodfor seeking post-conviction relief.[7] In January 2014, Videau filed a letter with the Louisiana Supreme Court seeking an extension of time in which to file a writ.[8] There is no order in the record granting an extension of time, and despite Videau's allegation he filed a brief with the Louisiana Supreme Court, the state court record does not include a copy of a brief.[9] The Louisiana Supreme Court issued an order on September 12, 2014, simply stating “Denied.”[10] Videau did not file a writ application with the United States Supreme Court.

         On December 1, 2015, Videau filed an application for post-conviction relief and supporting memorandum with the state district court.[11] The state trial court denied petitioner's application finding petitioner's claims to be without merit, procedurally barred, or previously addressed on direct appeal.[12] Videau filed a traverse on February 3, 2016.[13] The state district court denied the claims on February 18, 2016.[14] The court allowed petitioner until March 26, 2016 by which to file a writ application with the Louisiana Fifth Circuit.[15]

         The Louisiana Fifth Circuit Court of Appeal denied petitioner's application for supervisory writ on April 19, 2016.[16] The Louisiana Supreme Court denied petitioner's application for review finding “no error in the lower court rulings.”[17]

         On May 7, 2018, Videau filed the instant federal application seeking habeas corpus relief.[18]The state has filed a response arguing that the application is untimely and that it is also a mixed petition.[19] The state did not address the merits of the claims. Petitioner has filed a reply to the state's response in which he attempts to refute the state's argument.[20] For the following reasons, the undersigned finds that petitioner's federal application was in fact untimely.

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) generally requires that a petitioner bring his Section 2254 claims within one (1) year of the date on which his underlying criminal judgment becomes “final.” 28 U.S.C. § 2244(d)(1)(A). On that point, the United States Fifth Circuit Court of Appeals has explained:

The statute of limitations for bringing a federal habeas petition challenging a state conviction begins to run on “the date on which the [state] 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). When a habeas petitioner has pursued relief on direct appeal through his state's highest court, his conviction becomes final ninety days after the highest court's judgment is entered, upon the expiration of time for filing an application for writ of certiorari with the United States Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003). However, “[i]f the defendant stops the appeal process before that point, ” ... “the conviction becomes final when the time for seeking further direct review in the state court expires.” Id. at 694; see also Foreman v. Dretke, 383 F.3d 336, 338 (5th Cir. 2004) (Section 2244(d)(1)(A) gives alternative routes for finalizing a conviction: either direct review is completed or the time to pursue direct review expires).
Although federal, not state, law determines when a judgment is final for federal habeas purposes, a necessary part of the finality inquiry is determining whether the petitioner is still able to seek further direct review. See Foreman, 383 F.3d at 338-39. As a result, this court looks to state law in determining how long a prisoner has to file a direct appeal. See Causey v. Cain, 450 F.3d 601, 606 (5th Cir. 2006); Roberts, 319 F.3d at 693. Louisiana Supreme Court Rule X, § 5(a) states that an application “to review a judgment of the court of appeal either after an appeal to that court ... or after a denial of an application, shall be made within thirty days of the mailing of the notice of the original judgment of the court of appeal.”

Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008).

         As noted, the Louisiana Fifth Circuit Court of Appeal affirmed petitioner's convictions and sentences on December 27, 2013. Accordingly, he had only until Monday January 27, 2014, [21] to file a Louisiana Supreme Court writ application seeking further direct review. The record demonstrates that Videau sent a letter seeking to the Louisiana Supreme Court requesting a thirty-day extension of time to file a writ application. The state argues that it confirmed with both the Louisiana Supreme Court Records Department as well as the Louisiana Supreme Court's Clerk's Office that Videau did not submit any further filings.[22] It continues that Videau never filed a writ application, only an improper extension of time, and the Louisiana Supreme Court's September 12, 2014 order was a denial of the request for extension of time. The state therefore argues that Videau's conviction would have become final on January 27, 2014, which was thirty (30) days after the Louisiana Fifth Circuit's ruling. See Butler v. Cain, 533 F.3d 314 (5th Cir. 2008) (citing Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (an appeal is final when the state defendant does not timely proceed to the next available step in an appeal process)). An untimely filing in the Louisiana Supreme Court would not be part of a proper finality calculation or offer a statutory tolling benefit. Id.

         The record reflects that twenty-one days after the Louisiana Fifth Circuit denial of his direct appeal, on January 17, 2014, Videau signed and submitted a written request for an extension of time to file a writ application with the Louisiana Supreme Court.[23] The Louisiana Supreme Court does not ordinarily grant extensions. See Butler, 533 F.3d at 319 (“A Louisiana Supreme Court rule requires that an ‘application seeking to review a judgment of the court of appeals,' must be filed within thirty days; it specifies that ‘[n]o extension of time therefor will be granted.' La. Sup. Ct. R. X, § 5(a). While another section of the Rule - Section 5(b) - allows the Supreme Court to extend the time for filings ... ‘upon proper showing,' that applies to narrow categories of applications ....”). However, a letter from the clerk of the Louisiana Supreme Court dated January 31, 2014, reflects that Videau's pleading in fact was “received and filed” and assigned a case number “on the Docket of this Court.”[24] Contrary to the state's assertions, Videau's pleading was not ignored and instead appears to have been treated as a timely filed writ application despite the fact that he apparently never filed a brief in support of his construed application.

         As a result, Videau's conviction became final for AEDPA purposes on December 12, 2014, which was ninety (90) days after the Louisiana Supreme Court denied his related writ application, and his federal limitations period commenced on that date. That limitations period then expired one year later on December 11, 2015, unless that period was extended through tolling.

         The Court first considers statutory tolling. Regarding the statute of limitations, the AEDPA expressly provides: “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...


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