United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
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.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
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.
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.
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.
Law and Analysis
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).
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). 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.
petitioner filed an application for supervisory writs with
the Louisiana Supreme Court, which was denied on August 3,
2018. 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.
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 ...