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Westley v. Vannoy

United States District Court, E.D. Louisiana

August 16, 2019

JAMAL WESTLEY
v.
DARREL VANNOY

         SECTION “B” (1)

          ORDER AND REASONS

         Before the Court are the Magistrate Judge's Report and Recommendation to dismiss petitioner Jamal Westley's petition for habeas corpus relief (Rec. Doc. 15), and petitioner's objections to the Report and Recommendation (Rec. Doc. 16). For the reasons discussed below, IT IS ORDERED that the petitioner's objections are OVERRULED;

         IT IS FURTHER ORDERED that the Magistrate Judge's Report and Recommendation are ADOPTED as the Court's opinion; and

         IT IS FURTHER ORDERED that the petition for habeas relief is DISMISSED WITH PREJUDICE.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Jamal Westley (“petitioner”) is an inmate currently incarcerated at Louisiana State Penitentiary in Angola, Louisiana. See Rec. Doc. 4-1 at 1. On May 24, 2013, petitioner was convicted of two counts of simple burglary of an inhabited dwelling, along with one count of each of the following offenses: forcible rape, access device fraud, armed robbery, and aggravated burglary. See Rec. Doc. 15 at 1. On June 18, 2013, petitioner was sentenced to twelve years on each count of simple burglary of an inhabited dwelling, forty years on the forcible rape conviction, six months on the access device fraud conviction, fifty years on the armed robbery conviction, and thirty years on the aggravated burglary conviction. See id. The court ordered that these sentences be served concurrently. See Id. On August 15, 2013, petitioner pleaded guilty to being a second offender on the armed robbery conviction and was resentenced to a concurrent term of ninety-nine years imprisonment. See id.

         On May 22, 2016, petitioner filed an application for post-conviction relief with the state trial court seeking an out-of-time appeal. See Id. On July 14, 2016, the application was denied as untimely. See Id. On September 1, 2016, the Louisiana Fourth Circuit Court of Appeal similarly denied him relief. See Id. at 1-2. On February 9, 2018, the Louisiana Supreme Court denied petitioner's related writ, holding that the application was not timely filed in the state district court and that petitioner had failed to show that an exception applied. See Id. at 2. On February 19, 2018, petitioner filed the instant federal habeas corpus petition, asserting that he received ineffective assistance of counsel when counsel failed to file a direct appeal. See Rec. Doc. 4-1 at 18, 22.

         LAW AND FINDINGS

         A. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) controls for purposes of this 28 U.S.C. § 2254 habeas corpus petition. See Poree v. Collins, 866 F.3d 235, 245 (5th Cir. 2017) (“Federal habeas proceedings are subject to the rules prescribed by the Antiterrorism and Effective Death Penalty Act . . .”); see also Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh v. Murphy, 521 U.S. 320 (1997)) (holding that AEDPA applies to habeas corpus petitions filed after the date the act went into effect).

         There are three threshold requirements under AEDPA which a habeas corpus petition must meet: (1) the petition must be timely; (2) the petitioner must have exhausted state court remedies; and (3) the petitioner must not be in procedural default. See 28 U.S.C. § 2244(d); see also Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 USC § 2254(b), (c)). Because the instant petition is untimely, it is unnecessary to address the exhaustion and procedural default requirements.

         B. Timeliness

         The AEDPA imposes a one-year statute of limitations for petitioners seeking relief under 28 U.S.C. § 2254. See 28 U.S.C. 2244(d)(1). Because petitioner's claim does not involve a state-created impediment or a newly recognized constitutional right, neither § 2244(d)(1)(B) nor (C) apply. Accordingly, the timeliness of the instant petition need only be considered under § 2244(d)(1)(A) and (D).

         First, for a habeas corpus petition to be timely under § 2244(d)(1)(A), the AEDPA requires that it be filed within one year of the date that the judgement became final. See 28 U.S.C. § 2244(d)(1)(A); see also Duncan v. Walker, 533 U.S. 167, 179-80 (2001). A judgement becomes 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). Accordingly, a conviction becomes final when the period for filing a notice of appeal expires and no appeal has been taken. See Roberts v. Cockrell, 319 F.3d 690, ...


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