United States District Court, W.D. Louisiana, Alexandria Division
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 John Luttrull
(“Luttrull”) (#567816). Luttrull is an inmate in
the custody of the Louisiana Department of Corrections,
incarcerated at the Louisiana State Penitentiary in Angola,
Louisiana. Luttrull challenges his conviction and sentence
imposed in the 7th Judicial District Court, Concordia Parish.
Luttrull's § 2254 Petition is untimely, it should be
DENIED and DISMISSED WITH PREJUDICE.
was indicted for one count of aggravated rape (Docket No.
09-1019) and one count of aggravated incest (Docket No.
09-2120). See State v. J.L., 2010-1152 (La.App. 3
Cir. 10/5/11), 2011 WL 4582456; State v. J.L.,
2010-1153 (La.App. 3 Cir. 10/5/11). Although the cases were
not consolidated, the two counts were tried at the same time.
Id. Luttrull was convicted of both crimes. The court
sentenced Luttrull to life imprisonment without benefit of
parole, probation, or suspension of sentence for aggravated
rape, and twenty years of imprisonment for aggravated incest.
Id. Luttrull filed one appeal for both convictions.
Because the cases were never consolidated, and each
conviction had its own docket number, the appellate court
issued two identical opinions under docket number 2010-1152
(aggravated rape) and docket number 2010-1153 (aggravated
sought writs in the Louisiana Supreme Court from Docket
Number 10-1153-aggravated incest-but writs were denied.
State ex rel. Luttrull v. State, 2011-2738 (La.
9/21/12); 98 So.3d 323.
alleges he filed an application for post-conviction relief in
both cases on September 3, 2013, which was denied on November
2, 2017. (Doc. 1, p. 3). Luttrull sought writs in the Third
Circuit, which were denied on August 28, 2018. (No. 17-1156,
La. App. 3 Cir.) (Doc. 13-1, p. 49). Luttrull's writ
application was denied by the Louisiana Supreme Court as
“[u]ntimely filed pursuant to La.S.Ct.R. X §
5.” State v. Luttrull, 2018-1715 (La.
12/17/18); 259 So.3d 340. According to the documents
submitted by Luttrull, the writ application was scanned at
the Louisiana State Penitentiary for filing on October 17,
2018. (Doc. 13-1, p. 50).
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 direct review in the United States Supreme
Court, so his conviction became final for AEDPA purposes on
December 20, 2012, upon the expiration of time for seeking
further review. 28 U.S.C. § 2254(d)(1). Luttrull had one
year from that date within which to file a § 2254
petition. Luttrull's Petition was not filed until January
17, 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). However, the
time during which there are no properly filed post-conviction
or other collateral review proceedings pending does count
against the one-year period. To be considered “properly
filed” for purposes of § 2244(d)(2), an
application's delivery and acceptance must comply 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)).
application for post-conviction relief was timely filed in
the trial court on October 18, 2013, with 63 days remaining
on the one-year limitations period under the AEDPA. However,
Luttrull's writ application in the Louisiana Supreme
Court was not timely filed. Louisiana Supreme Court Rule X,
§ 5(a) provides that a writ application “shall be
made within thirty days of the mailing of the notice of the
original judgment of the court of appeal.” The court of
appeal denied writs on August 28, 2018, and notice was mailed
that date. (Doc. 13-1, p. 49). Luttrull's writ
application was signed October 16, 2018 and emailed for
filing by the Louisiana State Penitentiary on October 17,
2018, more than 30 days from the mailing of notice by the
appellate court, and in violation of Rule X. (Doc. 13-1, p.
contrast to an untimely writ application filed before the
intermediate appellate court, which has been held to be
“properly filed” and “pending” even
though untimely because it requires “some level of
judicial review, ” an untimely writ application before
the Louisiana Supreme Court is not subject to such review.
Williams v. Cain, 217 F.3d 303, 306 (5th Cir. 2000).
Therefore, the filing of an untimely writ application before
the Louisiana Supreme Court does not toll the limitations
period because it is not “properly filed” and is
therefore not “pending” before that Court.
See Williams at 308; Jenkins v. Cooper,