United States District Court, E.D. Louisiana
ORDER AND REASONS
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
IS FURTHER ORDERED that the Magistrate Judge's
Report and Recommendation are ADOPTED as the
Court's opinion; and
IS FURTHER ORDERED that the petition for habeas
relief is DISMISSED WITH PREJUDICE.
BACKGROUND AND PROCEDURAL HISTORY
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.
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.
Standard of Review
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
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.
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)
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, ...