United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
C. WILKINSON, JR UNITED STATES MAGISTRATE JUDGE.
matter was referred to a United States Magistrate Judge to
conduct hearings, 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. Upon review
of the entire record, I have determined that a federal
evidentiary hearing is unnecessary. See 28 U.S.C.
§ 2254(e)(2). For the following reasons, I recommend
that the instant petition for habeas corpus relief be
DISMISSED WITH PREJUDICE as time-barred.
petitioner, Jessie Eugene Shelton, appearing through counsel,
is a convicted inmate incarcerated in the B.B.
“Sixty” Rayburn Correctional Center in Angie,
Louisiana. On May 10, 2010, Shelton was charged by
bill of information in St. Tammany Parish with aggravated
incest and oral sexual battery upon his
daughter. On May 20, 2010, Shelton entered a not
guilty plea to the charges.
August 5, 2010, hearing, the state trial court granted
Shelton's motion to quash the oral sexual battery
charge. At the same hearing, Shelton withdrew his
former plea to enter a guilty plea to aggravated
incest. On August 31, 2010, the state trial court
sentenced Shelton to 20 years in prison at hard labor, with
one year suspended, followed by five years of supervised
conviction became final 30 days later, on September 30, 2010,
when he did not seek reconsideration of the sentence or
pursue a direct appeal. Roberts v. Cockrell, 319 F.3d
690, 694-95 (5th Cir. 2003) (under federal habeas law, a
conviction is final when the state defendant does not timely
proceed to the next available step in the state appeal
process); see Cousin v. Lensing, 310 F.3d 843, 845
(5th Cir. 2002) (petitioner's guilty pleas became final
at the end of the period for seeking leave to file a notice
of appeal under La. Code Crim. P. art. 914).
than 22 months later, on August 2, 2012, Shelton signed and
submitted to the state trial court an application for
post-conviction relief asserting the following: (1) He was
denied the right to a direct appeal because the state trial
court did not advise him of the right after sentencing. (2)
The plea agreement was an absolute nullity because the
sentencing was contingent on the victim impact statement. (3)
The guilty plea was not entered knowingly, intelligently or
August 29, 2012, the state trial court denied relief, finding
no merit in the claims. Shelton did not seek review of this
than four years later, on October 15, 2016, Shelton signed
and submitted to the state trial court a second application
for post-conviction relief asserting the
following: (1) He was denied due process in the
allotment of his case. (2) The court lacked jurisdiction
because the crime was committed in Washington Parish. (3)
Prosecutorial misconduct was involved in the allotment of his
case and the choice of jurisdiction. (4) His counsel provided
ineffective assistance because they did not challenge the
allotment, jurisdiction of the state trial court or the
same day and during the next few months, Shelton's
retained counsel filed several motions for recusal of the
trial judge (Division D), recusal of the judge (Division H)
presiding over the motion to recuse the trial judge and
re-allotment of the proceedings to the judge in Division
I. The motions and Shelton's
post-conviction application alleged that his original
criminal charges were allotted to Division I and by
manipulation of the prosecutor, and because of his subsequent
arrest on a different rape charge, the entire matter was
moved to Division D, where Shelton eventually entered his
guilty plea. He argues that this denied him due process and
the matter should be renewed before Division I.
April 5, 2017, the state judge in Division H heard argument
on the motion to recuse and re-allot and ordered additional
briefing, including the State's responses to the motions
and the post-conviction application. At a May 3, 2017,
hearing, the court denied the motions to recuse and re-allot,
because allotment to Division D for trial was proper under
the rules of the court. The record and independent research
of staff of the undersigned magistrate judge indicate that
the state trial court has not yet ruled on Shelton's
second application for post-conviction relief.
25, 2017, the Louisiana First Circuit denied Shelton's
counsel-filed writ application seeking review of the denial
of the motions to recuse and re-allot. On December
17, 2018, the Louisiana Supreme Court denied the related writ
FEDERAL HABEAS PETITION
January 30, 2019, the clerk of court filed Shelton's
federal habeas corpus petition in which he asserts the
following grounds for relief: (1) He was denied due process
in the allotment process. (2) The state trial court in St.
Tammany Parish lacked jurisdiction over his case, because the
alleged crime occurred in Washington Parish. (3) He was
denied effective assistance of counsel when his counsel
failed to challenge the allotment and jurisdiction of the
court. (4) There was prosecutorial misconduct during the
allotment process, and he received ineffective assistance
when his counsel did not challenge it.
March 6, 2019, the State filed a response in opposition to
Shelton's federal petition, asserting that the petition
is time-barred and reserving its right to assert lack of
exhaustion and other defenses and/or address the merits of
Shelton's claims, if necessary.
GENERAL STANDARDS OF REVIEW
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,
comprehensively revised federal habeas corpus legislation,
including 28 U.S.C. § 2254. The AEDPA went into effect
on April 24, 1996 and applies to habeas petitions filed
after that date. Flanagan v. Johnson, 154 F.3d 196,
198 (5th Cir. 1998) (citing Lindh v. Murphy, 521
U.S. 320 (1997)). The AEDPA therefore applies to this
petition deemed filed on January 14, 2019, when it was signed
by Shelton, and filed on January 30, 2019, when the filing
fee was paid by his counsel.
threshold questions in habeas review under the amended
statute are whether the petition is timely and whether
petitioner's claims were adjudicated on the merits in
state court; i.e., the petitioner must have
exhausted state court remedies and must not be in
“procedural default” on a claim. Nobles v.
Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28
U.S.C. § 2254(b), (c)).
State correctly asserts that Shelton's federal petition
was not timely filed. For the following reasons,
Shelton's petition must be dismissed ...