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Gioele v. Kent

United States District Court, M.D. Louisiana

July 9, 2019

TOMMY GIOELE #704744
v.
JASON KENT, ET AL.

          NOTICE

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         This matter comes before the Court on the petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The State has filed an opposition to the petitioner's application. See R. Doc. 14. There is no need for oral argument or for an evidentiary hearing.

         On January 22, 2019, the pro se petitioner, an inmate confined at Dixon Correctional Institute, Jackson, Louisiana, filed this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, attacking his 2015 criminal conviction and sentence pursuant to a guilty plea entered in the Eighteenth Judicial District Court for the Parish of West Baton Rouge, State of Louisiana, on two counts of solicitation for murder. The petitioner asserts that he was provided with ineffective assistance of counsel, illegal wiretap evidence was used against him, he was entrapped, and there was duplicitous charging in the bill of information.

         Procedural History

         On October 19, 2015, the petitioner pled guilty of two counts of solicitation for murder and was sentenced to 20 years, with 10 years of the sentence suspended. On November 16, 2016, the petitioner filed an application for post-conviction relief (“PCR”). The trial court denied the petitioner's PCR application on January 5, 2017. The petitioner sought further review which was denied by the Louisiana First Circuit Court of Appeal on March 20, 2017. The petitioner subsequently filed an application for a supervisory writ with the Louisiana Supreme Court, which was denied on August 3, 2018. On January 22, 2019, the petitioner filed the present application.

         Applicable Law and Analysis

         As set forth below, this Court concludes, as asserted by the State of Louisiana, that the petitioner's application is untimely. In this regard, pursuant to 28 U.S.C. § 2244(d), there is a one-year statute of limitations applicable to federal habeas corpus claims brought by prisoners in state custody. This limitations period begins to run on the date that the judgment becomes final through the conclusion of direct review or through the expiration of time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). As provided by the referenced statute, the time during which a properly filed application for state post-conviction or other collateral review is thereafter pending before the state courts with respect to the pertinent judgment or claim shall not be counted toward any part of the one-year limitations period. 28 U.S.C. § 2244(d)(2). However, the time during which there are no properly filed post-conviction or other collateral review proceedings pending does count toward calculation of the one-year period. To be considered “properly filed” for purposes of § 2244(d)(2), an application's delivery and acceptance must be in compliance 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). Further, a properly-filed state application is considered to be “pending” both while it is before a state court for review and also during the interval after a state court's disposition while the petitioner is procedurally authorized under state law to proceed to the next level of state court consideration. See Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001).

         In the instant case, the petitioner was sentenced on October 19, 2015. Because the petitioner did not appeal or seek reconsideration of his sentence, the judgment became final on November 18, 2015, upon the passage of the time allowed for him to pursue an appeal (30 days after his sentencing).[1] Thereafter, approximately 364 days elapsed before the petitioner filed his PCR application on November 16, 2016. The Louisiana First Circuit Court of Appeal denied his writ application on March 20, 2017.

         The petitioner filed an application for supervisory writs with the Louisiana Supreme Court, which was denied on August 3, 2018.[2] Approximately 172 days passed between the denial of petitioner's writ application by the Louisiana Supreme Court and the filing of the instant petition on January 22, 2019. This results in an additional 172 days of un-tolled time during which the petitioner did not have any properly filed application for post-conviction or other collateral relief pending before the state courts.

         Accordingly, inasmuch as the petitioner's conviction and sentence became final 30 days after entry of same without reconsideration or appeal, on November 18, 2015, the one-year limitations period for filing a federal habeas corpus application began to run on that date. Approximately 364 days passed between the time the petitioner's conviction became final and the filing of the petitioner's PCR application in the state trial court. Thereafter, 172 days elapsed between the denial of the petitioner's writ application by the Louisiana Supreme Court and the filing of the instant petition on January 22, 2019. This resulted in 536 days of un-tolled time. Accordingly, more than a year elapsed during ...


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