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Shelton v. Tanner

United States District Court, E.D. Louisiana

June 12, 2019


         SECTION “E” (2)



         This 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).[1] For the following reasons, I recommend that the instant petition for habeas corpus relief be DISMISSED WITH PREJUDICE as time-barred.


         The petitioner, Jessie Eugene Shelton, appearing through counsel, is a convicted inmate incarcerated in the B.B. “Sixty” Rayburn Correctional Center in Angie, Louisiana.[2] 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.[3] On May 20, 2010, Shelton entered a not guilty plea to the charges.[4]

         At an August 5, 2010, hearing, the state trial court granted Shelton's motion to quash the oral sexual battery charge.[5] At the same hearing, Shelton withdrew his former plea to enter a guilty plea to aggravated incest.[6] 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 probation.[7]

         Shelton's conviction became final 30 days later, on September 30, 2010, when he did not seek reconsideration of the sentence or pursue a direct appeal.[8] 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[9]).

         More 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:[10] (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 voluntarily.

         On August 29, 2012, the state trial court denied relief, finding no merit in the claims. Shelton did not seek review of this ruling.

         More 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:[11] (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 prosecutorial misconduct.

         That 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.[12] 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.

         On 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.[13] 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.[14] 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.

         On July 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.[15] On December 17, 2018, the Louisiana Supreme Court denied the related writ application.[16]


         On January 30, 2019, the clerk of court filed Shelton's federal habeas corpus petition in which he asserts the following grounds for relief:[17] (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.

         On 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.[18]


         The 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[19] 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.[20]

         The 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)).

         The State correctly asserts that Shelton's federal petition was not timely filed. For the following reasons, Shelton's petition must be dismissed ...

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