United States District Court, M.D. Louisiana
RULING AND ORDER
A. Jackson, Judge
Joseph, proceeding pro set petitions for
a writ of habeas corpus under 28 U.S.C. § 2254. (Doc.
1). The State of Louisiana counters that the petition is
untimely under the one-year limitation period prescribed by
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. The Court
agrees and dismisses the petition.
was convicted of the first-degree murder of his
three-year-old son. (Doc. 1 at p. 1). He received a sentence
of life without parole. (Id.).
timely appealed his conviction and sentence to the Louisiana
First Circuit Court of Appeal. (Id. at p. 2). That
court affirmed. See State v. Joseph, No.
2005-KA-2169 (La. Ct. App. 1st Cir. 12/28/06) (unpublished).
Joseph timely applied for a writ from the Supreme Court of
Louisiana. See State v. Joseph, 2007-0273 (La.
10/5/07); 964 So.2d 384 (memorandum opinion). After that
court denied his writ application, he applied for
reconsideration. See State v. Joseph, 2007-0273 (La.
1/25/08); 973 So.2d 745 (memorandum opinion). The Supreme
Court of Louisiana denied reconsideration in a January 25,
2008 order. Id. Joseph did not petition the United
States Supreme Court for a writ of certiorari. (Doc. 1 at p.
2). So his judgment of conviction became "final" on
April 24, 2008-90 days after January 25, 2008. See Ott v.
Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (holding that
28 U.S.C. § 2244(d)(1)(A) "takes into account the
time for filing a certiorari petition in determining the
finality of a conviction on direct review").
applied to the state trial court for post-conviction
relief on December 2, 2008. (Doc. 1-2 at p. 4).
That court denied the application on April 1, 2014. (Doc. 1-3
at p. 25). Joseph next applied for a writ from the Louisiana
First Circuit Court of Appeal. (Id. at p. 50). That
court denied the application on August 12, 2014 because it
did not comply with filing requirements. (Id.).
Joseph applied for a writ from the Supreme Court of
Louisiana, which denied the application as untimely on
December 7, 2015. See Joseph v. State, 2015JKH-0845
Joseph filed his § 2254 petition on May 5, 2016. (Doc.
requires a § 2254 petitioner to apply for a writ of
habeas corpus within one year of the date "on which the
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). To calculate when the one-year
limitation period has run, the Court "aggregate[s] the
time between (i) the date the petitioner's conviction
became 'final' and the date the petitioner filed his
state habeas application; and (ii) the date the state habeas
process concluded and the date the petitioner filed his
federal habeas petition." Sutton v. Cain, 722
F.3d 312, 316 n.6 (5th Cir. 2013) (per curiam).
judgment of conviction became final on April 24, 2008. See
Ott, 192 F.3d at 513. He filed his state
post-conviction application 222 days later, on December 2,
2008. (Doc. 1-2 at p.4). The one-year limitation period was
tolled during the pendency of "properly filed"
state post-conviction proceedings. See 28 U.S.C. §
2244(d)(2). Those proceedings concluded on December 7, 2015,
and the one-year limitation period began to run
again. Id. Joseph filed his § 2254
petition 150 days later, on May 5, 2016. (Doc. 1). That was
too late: by that time, 372 un-tolled days had elapsed.
Because Joseph failed to file his petition within 365
un-tolled days of April 24, 2008, his petition is untimely.
See 28 U.S.C. § 2244(d)(1)(A).