Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Winzer v. Vannoy

United States District Court, W.D. Louisiana, Monroe Division

August 6, 2019

JONTERRANCE WINZER
v.
DARREL VANNOY

         SECTION P

          TERRY A. DOUGHTY JUDGE.

          REPORT AND RECOMMENDATION

          KAREN L. HAYES UNITED STATES MAGISTRATE JUDGE.

         Petitioner JonTerrance Winzer, a prisoner in the custody of Louisiana's Department of Corrections proceeding pro se and in forma pauperis, filed the instant Petition for Writ of Habeas Corpus under 2');">28 U.S.C. § 2');">22');">254 on approximately May 2');">22');">2, 2');">201');">19. Petitioner attacks his second-degree murder and armed robbery convictions, as well as the respective life and ninety-nine-year concurrent sentences imposed by the Third Judicial District Court, Union Parish.[1');">1" name="FN1');">1" id="FN1');">1">1');">1] For the following reasons, the Court should deny the Petition as untimely.

         Background

         On July 2');">25, 2');">201');">13, a jury found Petitioner guilty of second-degree murder and armed robbery. [doc. # 1');">1, p. 1');">1]. Thereafter, the Third Judicial District Court, Union Parish, imposed a life sentence for second degree murder and a concurrent ninety-nine-year sentence for armed robbery. Id.

         Petitioner appealed, claiming that the evidence introduced at trial was insufficient to sustain his convictions, that the trial court failed to review his motion to quash and motion for a continuance, that there was no probable cause to arrest him, that the prosecution withheld evidence, and that his trial counsel rendered ineffective assistance. See State v. Winzer, 49, 31');">16 (La.App. 2');">2 Cir. 1');">10/8/1');">14), 1');">151');">1 So.3d 1');">135');">1');">151');">1 So.3d 1');">135, 1');">148, writ denied, 2');">201');">14-2');">2373 (La. 4/2');">22');">2/1');">16), 1');">191');">1 So.3d 1');">1044. On October 8, 2');">201');">14, the Louisiana Second Circuit Court of Appeal affirmed Petitioner's convictions and sentences. Id.

         On April 2');">22');">2, 2');">201');">16, the Supreme Court of Louisiana denied Petitioner's Application for Writ of Certiorari and/or Review. State v. Winzer, 2');">201');">14-2');">2373 (La. 4/2');">22');">2/1');">16), 1');">191');">1 So.3d 1');">1044');">1');">191');">1 So.3d 1');">1044. Petitioner did not apply for certiorari before the United States Supreme Court. [doc. # 1');">1, p. 4].

         Petitioner filed an application for post-conviction relief on July 1');">12');">2, 2');">201');">17.[2');">2" name="FN2');">2" id= "FN2');">2">2');">2] [doc. #s 1');">1-2');">2, p. 2');">2; 9-3, pp. 4-1');">11');">1]. On July 31');">1, 2');">201');">17, the trial court denied Petitioner's application. [doc. # 9-3, p. 36].

         On August 30, 2');">201');">17, Petitioner filed a writ application before the Louisiana Second Circuit Court of Appeal. Id. On November 1');">15, 2');">201');">17, the appellate court denied the application. Id. The Supreme Court of Louisiana denied Petitioner's writ application on January 2');">28, 2');">201');">19. State v. Winzer, 2');">201');">18-02');">203 (La. 1');">1/2');">28/1');">19), 2');">262');">2 So.3d 891');">1.

         Petitioner filed the instant proceeding on approximately May 2');">22');">2, 2');">201');">19, claiming that: (1');">1) his appellate counsel rendered ineffective assistance; (2');">2) his trial counsel rendered ineffective assistance; (3) there was no probable cause to arrest him; (4) the trial court failed to review, or conduct a hearing on, his motion for a speedy trial, motion to quash, motion for change of venue, and motion for a continuance; (5) he is actually innocent; (6) the State engaged in prosecutorial misconduct; and (7) the evidence introduced at trial was insufficient to sustain his convictions. [doc. # 1');">1-2');">2].

         Law and Analysis

         Title 2');">28 U.S.C. § 2');">22');">244(d)(1');">1) provides a one-year statute of limitations for filing habeas corpus applications by persons in custody pursuant to the judgment of a state court. The limitation period shall run from the latest of-

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

2');">28 U.S.C. § 2');">22');">244(d)(1');">1).

         Here, with respect to subsection “C” above, Petitioner's claims do not rely on a constitutional right newly recognized by the United States Supreme Court and made retroactively applicable to cases on collateral review. With respect to subsection “D, ” Petitioner does not contend that “the factual predicate of the claim or claims presented” were “discovered through the exercise of due diligence” after the date on which his judgment became final.

         Petitioner does not mention subsection “B” or otherwise argue that he was impeded from filing this Petition.[3" name="FN3" id= "FN3">3] Out of caution, though, the undersigned will examine subsection “B.” Petitioner alleges that he filed a “shell petition” before this Court on January 30, 2');">201');">19, requesting an extension of time in which to file his complete petition. [doc. # 1');">1-2');">2, pp. 2');">2-3]. The requirements for the “statutory time-bar reset provision of § 2');">22');">244(d)(1');">1)(B) . . . are understandably steep.” Wickware v. Thaler, 856');">404 Fed.Appx. 856, 862');">2 (5th Cir. 2');">201');">10). To invoke the “reset, ” a petitioner “must show that: (1');">1) he was prevented from filing a petition (2');">2) by State action (3) in violation of the Constitution or federal law.” Id.

         Here, in the “shell petition, ”[4] Petitioner noted that “[h]e has access to the [sic] both the law library and his legal material that has been missing, ” thus suggesting that he once encountered impediments to filing the instant Petition. [doc. # 1');">13, p. 5]. Petitioner does not specify the legal materials he lacked, who was responsible for the impediment, when the impediments began and ended, or the extent he was impeded. In fact, Petitioner suggests that, as of January 30, 2');">201');">19, he encountered no impediments. [doc. # 1');">13, p. 5].

         Petitioner, ultimately, does not allege or maintain that the impediments he mentions were “created by State action” or, even if they were, that the State action violated “the Constitution or laws of the United States . . . .” 2');">28 U.S.C. §2');">22');">244(d)(1');">1)(B). Moreover, Petitioner does not definitively contend that the presumed impediments prevented him from filing this Petition.[5]

         Consequently, the one-year period of limitation “runs” from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review . . . .” 2');">28 U.S.C. § 2');">22');">244(d)(1');">1)(A).

         On April 2');">22');">2, 2');">201');">16, the Supreme Court of Louisiana denied Petitioner's Application for Writ of Certiorari and/or Review. State v. Winzer, 2');">201');">14-2');">2373 (La. 4/2');">22');">2/1');">16), 1');">191');">1 So.3d 1');">1044');">1');">191');">1 So.3d 1');">1044. Under United States Supreme Court Rule 1');">13, “a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort . . . is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment.” Here, Petitioner did not apply for certiorari before the United States Supreme Court. [doc. # 1');">1, p. 4]. Thus, the trial court's judgment became final on July 2');">21');">1, 2');">201');">16, ninety days after the Supreme Court of Louisiana denied Petitioner's application.

         Because Petitioner's conviction became final on July 2');">21');">1, 2');">201');">16, Petitioner had one year, or until July 2');">21');">1, 2');">201');">17, to file a federal habeas corpus petition. Petitioner did not file the instant Petition until, at the earliest, May 2');">21');">1, 2');">201');">19.[6] Thus, the one-year limitation period bars Petitioner's claims unless Petitioner extended the July 2');">21');">1, 2');">201');">17 deadline through statutory or equitable tolling.

         I. Statutory Tolling

         The statutory tolling provision in 2');">28 U.S.C. § 2');">22');">244(d)(2');">2) provides, “[t]he time during which a properly filed application for State post-conviction or other collateral review . . . is pending shall not be counted toward any period of limitation . . . .” However, any lapse of time before the proper filing of an application for post-conviction relief in state court is counted against the one-year limitations period, Flanagan v. Johnson, 1');">154 F.3d 1');">196');">1');">154 F.3d 1');">196, 1');">199 n.1');">1 (5th Cir. 1');">1998), and the limitations period is tolled only for as long as the state application remains pending. Johnson v. Quarterman, 483 F.3d 2');">278, 2');">285 (5th Cir. 2');">2007).

         Here, Petitioner filed an application for post-conviction relief on July 1');">12');">2, 2');">201');">17. [doc. #s 1');">1-2');">2, p. 2');">2; 9-3, pp. 4-1');">11');">1]. Thus, 356 days elapsed, from the time Petitioner's conviction became final to the time Petitioner filed his application for post-conviction relief before the state trial court. On July 31');">1, 2');">201');">17, the trial court denied Petitioner's application. Id. On November 1');">15, 2');">201');">17, the appellate court denied the application. Id. The Supreme Court of Louisiana denied Petitioner's writ application on January 2');">28, 2');">201');">19. State v. Winzer, 2');">201');">18-02');">203 (La. 1');">1/2');">28/1');">19), 2');">262');">2 So.3d 891');">1');">2');">262');">2 So.3d 891');">1.

         Petitioner had 9 days following the Supreme Court of Louisiana's denial on January 2');">28, 2');">201');">19, to file the instant Petition before the 1');">1-year period of limitation expired. Petitioner, however, allowed 1');">11');">13 days to elapse, following the Supreme Court of Louisiana's denial, before he filed the instant Petition, at the earliest, on May 2');">21');">1, 2');">201');">19.

         Accordingly, the instant Petition is untimely and should be dismissed absent rare and exceptional circumstances.

         II. Equitable Tolling

         The one-year statute of limitations can, in rare and exceptional circumstances, be equitably tolled. See Davis v. Johnson, 1');">158 F.3d 806');">1');">158 F.3d 806, 81');">11');">1 (5th Cir. 1');">1998). Equitable tolling “applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.” U.S. v. Wheaten, 82');">26 F.3d 843');">82');">26 F.3d 843, 851');">1 (5th Cir. 2');">201');">16). “A petitioner's failure to satisfy the statute of limitations must result from external factors beyond his control; delays of the petitioner's own making do not qualify.” In re Wilson, 2');">2 F.3d 872');">2');">442');">2 F.3d 872');">2, 875 (5th Cir. 2');">2006). “To be entitled to equitable tolling, [the petitioner] must show ‘(1');">1) that he has been pursuing his rights diligently, and (2');">2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Lawrence v. Fla., 32');">27');">549 U.S. 32');">27, 336 (2');">2007) (quoting Pace v. DiGuglielmo, 8');">544 U.S. 408, 41');">18 (2');">2005)).

         Here, Petitioner does not ask the Court to equitably toll the one-year period of limitation. However, as noted, Petitioner alleges that he filed a “shell petition” before this Court on January 30, 2');">201');">19, requesting an extension of time in which to file his complete petition. [doc. # 1');">1-2');">2, pp. 2');">2-3]. In the undated “shell petition, ” he wrote:

Petitioner request that he be provided 1');">12');">20 days extension to perfect his habeas Corpus relief. Petitioner request that he is presently housed at Louisiana State Prison Camp C. He has access to the both the law library and his legal material that has been missing. Petitioner request within the next 1');">12');">20 days will allow him to perfect his habeas Corpus. [sic].

Id. To reiterate, Petitioner did not specify the legal materials he lacked, who was responsible for the impediment, when the impediments began and ended, or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.