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Smith v. Vannoy

United States District Court, E.D. Louisiana

June 12, 2019

VIRGIL SMITH
v.
DARREL VANNOY, WARDEN

         SECTION: “I” (5)

          REPORT AND RECOMMENDATION

          MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE

         This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, including an evidentiary hearing, if necessary, and to submit proposed findings 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 entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). For the following reasons, IT IS RECOMMENDED that the petition for habeas corpus relief be DISMISSED WITH PREJUDICE.

         Procedural History

         Petitioner, Virgil Smith, is a convicted inmate currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On June 1, 2001, Smith was charged by bill of indictment with first-degree murder in violation of La. Rev. Stat. § 14:30.[1] On July 21, 2008, the morning of trial, Smith advised that he wanted to represent himself with his appointed counsel acting as shadow counsel.[2] After conducting a hearing, the trial court allowed Smith to represent himself.[3] After a five-day trial, on July 25, 2008, a jury found Smith guilty as charged.[4] Smith's pro se and counseled post-conviction motions for a new trial and judgement of acquittal were denied.[5] On October 8, 2008, Smith was sentenced to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence.[6]

         On direct appeal, Smith's appointed counsel asserted that the evidence was insufficient to support the first-degree murder conviction and that the trial court erred in permitting two friends of the deceased to testify to hearsay statements allegedly made by the victim pursuant to La. Code Evid. art. 803(3).[7] By order dated May 27, 2009, the Louisiana First Circuit provided that Smith could file a supplemental appellate brief by June 26, 2009, and ordered the record to be forwarded to the Louisiana State Penitentiary so that Smith could access it.[8] The record does not indicate that the Louisiana First Circuit ever received a supplemental brief from Smith.[9] On September 11, 2009, the Louisiana First Circuit Court of Appeal affirmed his conviction and sentence.[10] The state-court record includes a motion for rehearing, but according to Smith it was returned unfiled.[11]

         Smith filed a motion for extension of time with the Louisiana Supreme Court on October 28, 2009.[12] He filed a writ application with the Louisiana Supreme Court on January 27, 2010.[13] On February 11, 2011, the Louisiana Supreme Court denied his application for a writ of certiorari, explaining that he did not seek an extension of time until after the time within which to file a writ expired, citing La. S.Ct. R. X § 5.[14]

         Smith filed a motion for extension of time by which to file an application for post-conviction relief on November 5, 2012.[15] Smith claimed that he had received his former counsel's file on November 17, 2011, and had newly discovered evidence that would have changed the verdict. He requested 90 days to file an application for post-conviction relief. He explained that he had four other appeals related to different convictions and had not had time to file an application of post-conviction relief related to his first-degree murder conviction. On January 16, 2013, the trial court denied that motion stating “[i]f filed out of time the court will consider if appropriate to consider.”[16]

         On January 12, 2015, Smith filed an application for post-conviction relief with the trial court.[17] In that application, he asserted (1) the trial court erred when it denied his motion to quash; (2) the State presented false testimony and evidence at trial; (3) the trial court, prosecution and defense counsel violated his constitutional rights thereby subjecting Smith to an unfair trial resulting in a wrongful conviction and sentence; (4) the prosecution used “date and word play” to assist a witness in providing false testimony; (5) the State's claim that Smith raped the victim inflamed the jury and violated due process; (6) a detective falsely testified that he took evidence to the laboratory in Baton Rouge for testing; (7) the trial court erred in allowing the prosecution to amend the indictment; (8) he was constructively denied counsel and compelled to represent himself at trial.

         On July 18, 2017, Smith filed a petition for writ of mandamus with the Louisiana First Circuit.[18] On September 5, 2017, the Louisiana First Circuit granted relief and instructed the state district court to “proceed toward disposition of relator's application for postconviction relief.”[19]

         In the interim, Smith sent a letter inquiring into the status of his application for post-conviction relief.[20] On August 18, 2017, the Clerk of Court for the 22nd District Court of the Parish of St. Tammany sent Smith a letter advising: “please be advised that your relief was filed in our office on February 8, 2015 and was scanned in our office, but was not presented to Judge Coady. Mr. Smith, your Post Conviction Relief has now been sent to Judge Martin E. Coady for ruling and once ruling is made you will be notified. Our office apologizes for the delay in this matter.”[21]

         On August 28, 2017, the trial court denied the application for post-conviction relief finding all the claims to be without merit and explaining “[t]he petitioner filed the pending Application for Post-Conviction Relief in 2015, however, for unknown reasons the application remained in the Clerk of Court's office and was not presented to the Court until now.”[22] On October 14, 2017, Smith filed a writ application with the Louisiana First Circuit Court of Appeal.[23] On January 25, 2018, the First Circuit denied Smith's writ application finding it to be untimely and successive under La. Code Crim P. arts. 930.4 and 930.8.[24] On February 8, 2018, Smith sought reconsideration of the ruling.[25] On March 15, 2018, the Louisiana First Circuit denied relief citing Uniform Rules- Louisiana Courts of Appeal, Rules 2-18.7 and 4.9.[26]

         On March 28, 2018, Smith filed a motion for extension of time with the Louisiana Supreme Court.[27] On May 11, 2018, the Louisiana Supreme Court issued its ruling, explaining “WRIT NOT CONSIDERED. Untimely filed pursuant to La. S.Ct. R. X § 5.”[28] On May 20, 2018, Smith sent a letter to the Louisiana Supreme Court along with an application for writ of certiorari, which was construed as a request for reconsideration.[29] The Louisiana Supreme Court denied reconsideration on October 15, 2018.[30]

         On January 30, 2019, Smith filed the instant application for habeas corpus relief.[31] In that application, Smith claims: (1) the trial court erred in denying his motion to quash; (2) the State presented false information that deprived him of his right to a fair trial; (3) the trial court, prosecution and defense counsel violated his constitutional rights thereby subjecting him to an unfair trial and wrongful sentence; (4) the State misled the witnesses resulting in a violation of due process; (5) the trial court erred in allowing the State to amend the indictment and constructively amend the indictment through the use of jury instructions; (6) newly discovered evidence in the form of a Slidell Police Report proved his actual innocence; (7) the State used “date and word play” to assist a witness in lying; (8) the State claimed the victim was raped to inflame the jury and violated his right to due process; and (9) “claim of lab testing.”

         The State argues that the application should be dismissed as untimely[32] Smith has not filed a reply.

         Analysis

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., governs the filing date for this action because Smith filed his habeas petition after the AEDPA's effective date. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Title 28 U.S.C. § 2244(d) provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
A. the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
B. the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
C. the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
D. the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

         Typically, a petitioner must bring his Section 2254 claims within one year of the date on which his underlying criminal judgment becomes “final.” With regard to finality, 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.

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

         Smith's state criminal judgment of conviction became final for AEDPA purposes on October 12, 2009, when his time expired for seeking further direct review by writ with the Louisiana Supreme Court.[33] The one-year limitations period would have expired October 12, 2010. However, Smith did not file the instant federal habeas petition with this Court until January 30, 2019. Thus, his application must be dismissed as untimely unless the deadline was extended through tolling.

         A. Statutory Tolling

         The Court finds no basis for statutory tolling in this case. Regarding the statute of limitations, the AEDPA expressly provides that “[t]he 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 toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). However, as the state-court record shows, Smith had no such applications pending before the state courts during the applicable one-year period. The one-year federal limitations period continued to run uninterrupted and expired on October 12, 2010.

         Petitioner's post-conviction application was filed with the state district court on January 12, 2015, more than four years after the one-year federal limitations period had already expired, and therefore could not possibly afford him any tolling benefit. See Madden v. Thaler, 521 Fed.Appx. 316, 320 (5th Cir. 2013); Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000); Magee v. Cain, Civ. Action No. 99-3867, 2000 WL 1023423, at *4 (E.D. La. Jul. 24, 2010) (citing Williams v. Cain, Civ. Action No. 00-536, 2000 WL 863132, at *2 (E.D. La. June 27, 2000)), aff'd, 253 F.3d 702 (5th Cir. 2001). Simply put, once the federal limitations period expired, “[t]here was nothing to toll.” Butler, 533 F.3d at 318.

         Smith's January 14, 2015 application for post-conviction relief did not toll the federal limitations period for an additional reason. It was ultimately found to be untimely under La. Code Crim. P. art. 930.8 by the Louisiana First Circuit and the Louisiana Supreme Court did not consider his related writ application as it too was untimely. As the United States Supreme Court has expressly held, when a state post-conviction filing is rejected by the state courts as untimely, it cannot be considered “properly filed” within the meaning of § 2244(d)(2) and therefore does not toll the limitations period. Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005). When a post-conviction filing is untimely under state law, “that is the end of the matter for purposes of § 2244(d)(2).” Id. at 414 (quotation marks and brackets omitted). Because Smith had no state applications pending at any time during the one-year limitations period, he clearly is not entitled to any tolling credit pursuant to § 2244(d)(2).

         Petitioner argues that he is entitled to a delayed commencement under Section 2244(d)(1)(B). His arguments also appear to implicate Section 2244(d)(1)(D). For the reasons that follow, Smith has failed to demonstrate that either subsection is the appropriate statutory trigger for the federal limitations period.

         Section 2244(d)(1)(B) allows a petitioner to “file a habeas corpus petition within one year from ‘the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action.' ” To establish a state-created impediment, “the prisoner must show that: (1) he was prevented from filing a petition, (2) by State action, (3) in violation of the Constitution or federal law.” Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003). In this case, then, Smith must show that the circumstances alleged actually prevented him from filing in violation of the Constitution or federal law. Egerton, 334 F.3d at 436-37; see also Krause v. Thaler, 637 F.3d 558, 561 (5th Cir. 2011) (holding that a petitioner “must also show that the [impediment] actually prevented him from timely filing his habeas petition”) (emphasis in original). Whether a state-created impediment prevented a petitioner from filing a habeas petition under Section 2244(d)(1)(B) is a fact-intensive inquiry. See Pace v. DiGuglielmo, 544 U.S. 408, 416 n. 6, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (Section 2244(d)(1)(B) requires claim-by-claim consideration); Egerton, 334 F.3d at 438 (citing Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc)). The Court rejects Smith's suggestion that there was a state-created impediment to his timely filing pursuant to 28 U.S.C. § 2244(d)(1)(B). Smith implies that he was unable to file for collateral review within the applicable time limits because he did not discover the Slidell Police Department Report until he was provided with his counsel's file. He also claims the trial court's failure to rule on his post-conviction application for two years also was a state-created impediment.[34]

         Initially, the Court notes that the State provided Smith's counsel with a 16-page police report from the Slidell Police Department on January 7, 2008, months prior to Smith's trial.[35] According to the report, the victim in this case, Chanda Ladner, was an “involved subject” in a simple battery on March 12, 2001, during which Nicole Bonura allegedly threatened to kill Chanda Lander, days before Lander was murdered.[36] At trial, after Smith was permitted to represent himself, shadow counsel agreed that Smith had not reviewed all of the discovery; however, throughout the trial, the trial court gave Smith the opportunity to view the evidence.[37] Further, despite the contention that Smith had not reviewed the evidence, Smith stated in his opening statement that Nicole Bonura threatened to kill Chanda Landra.[38]

         The Court notes that Smith stated in his November 5, 2012 motion for extension of time by which to file a post-conviction application that he had found newly discovered evidence when he received his counsel's files in 2011, but had been working on four other appellate matters and had not had time to file an application for post-conviction relief.[39] At other times, he has indicated that he received his counsel's files in 2014.[40]

         The record, however, establishes that Smith reviewed a copy of the report, at the latest, while his direct appeal was pending in 2009. In a motion for rehearing, Smith referred to the Slidell Police Report and admitted he received it when the Louisiana First Circuit sent the records to him for him to review in order for him to file a supplemental brief.[41] He similarly referred to the Slidell Police Report in his related writ application to the Louisiana Supreme Court and in fact again admitted that he received the report when he received the records from the Louisiana First Circuit.[42] In his application for post-conviction relief, Smith admitted he received a copy of the report in July 2009, but alleged that the importance of the report was not clear to him at that time.[43] Smith cannot show that he was impeded when he had this evidence in 2009. As he had the evidence prior to the conclusion of direct review, he could have filed a timely application for post-conviction relief as well as a timely habeas petition.

         Smith also claims that the trial court's two-year delay in the issuance of an order denying his 2015 application for post-conviction relief was a state-created impediment requiring a later starting date for the one-year limitations period. Initially, had Smith timely filed the application for post-conviction relief, the time during which it was pending would have been tolled. 28 U.S.C. § 2244(d)(2). He did not file his state post-conviction application until more than four years after the federal one-year limitations period expired. Given that his state application was untimely, the trial court's failure to rule on it for two years did not prevent Smith from timely filing his federal habeas petition. In this case, any impediment was plainly self-imposed. Therefore, Section 2244(d)(1)(B) is inapplicable.

         Smith's allegations also implicate 28 U.S.C. § 2244(d)(1)(D). Under that subsection, the commencement of the federal limitations period is delayed if a petitioner's claim is based on a factual predicate that could not have been discovered earlier through the exercise of due diligence. The one-year limitations period begins to accrue “when the factual predicate could have been discovered through the exercise of due diligence, ” not when it was actually discovered by a petitioner. 28 U.S.C. § 2244(d)(1)(D); see Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) (“... the time commences when the factual predicate ‘could have been discovered through the exercise of due diligence,' not when it was actually discovered by a given prisoner ... [and] not when the prisoner recognizes their legal significance.”). The United States Fifth Circuit has held “that this means the date a petitioner is on notice of the facts which would support a claim, not the date on which the petitioner has in his possession evidence to support his claim.” In re Young, 789 F.3d 518, 528 (5th Cir. 2015) (citing Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998)); see also Hunter v. Cain, 478 Fed.Appx. 852, 853 (5th Cir. 2012) (citing Starns v. Andrews, 524 F.3d 612, 620-21 & n. 5 (5th Cir. 2008) (holding that the relevant date under § 2244(d)(1)(D) is the date that the habeas petitioner or his criminal attorney received the information in question)).

         Under Subsection D, petitioner's limitations period would run not from the date on which petitioner in fact obtained the Slidell Police Report, but rather from the date on which it could have obtained through the exercise of due diligence. As explained above, Smith's shadow counsel was provided with the Slidell Police Report months prior to Smith's trial in 2008 and was certainly discoverable before Smith's trial. In any event, Smith candidly admitted that he had reviewed a copy of the report in 2009 while his direct appeal was still pending. Thus, the factual basis for his claims was personally known to him in 2009.[44] It is not a new factual predicate that would alter the beginning date of the AEDPA one-year statute of limitations. Yet, petitioner waited more than four years after his conviction became final before he filed his state application for post-conviction relief and nearly nine years before filing his habeas petition.

         B. Equitable Tolling

         The AEDPA's statute of limitations is also subject to equitable tolling. Holland v. Florida, 130 S.Ct. 2549, 2560 (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 2562 (internal quotation marks omitted); see also 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”). A petitioner bears the burden of proof to establish entitlement to equitable tolling. Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002).

         In this case, the record shows an inexplicable lack of diligence on Smith's part. As previously explained, as early as 2010, Smith alleged that he had new evidence that would have likely changed the outcome of the trial. Yet petitioner offers no reason for his failure to file an application for post-conviction relief in a timely fashion. It is well-settled that mistake, ignorance of the law, and a prisoner's pro se status do not suffice to justify equitable tolling. Johnson v. Quarterman, 483 F.3d 278, 286 (5th Cir. 2007); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002); Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir. 2002); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000); see also Tate v. Parker, 439 Fed.Appx. 375 (5th Cir. 2011) (“The alleged extraordinary circumstances endured by Tate, such as ignorance of the law, lack of knowledge of filing deadlines, a claim of actual innocence, temporary denial of access to research materials or ...


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