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Nguyen v. Vannoy

United States District Court, E.D. Louisiana

September 20, 2019

HUNG NGUYEN
v.
DARRELL VANNOY

         SECTION: “A” (3)

          REPORT AND RECOMMENDATION

          DANA M. DOUGLAS UNITED STATES MAGISTRATE JUDGE.

         Petitioner, Hung Nguyen, a Louisiana state prisoner, filed this federal application seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. For the following reasons, it is recommended that the application be DISMISSED WITH PREJUDICE.

         On February 23, 2010, petitioner was convicted under Louisiana law of aggravated rape and unauthorized use of a motor vehicle.[1] On March 4, 2010, he was sentenced on the rape conviction to a term of life imprisonment without benefit of probation, parole, or suspension of sentence and on the motor vehicle conviction to a concurrent sentence of ten years imprisonment.[2]The Louisiana Fifth Circuit Court of Appeal affirmed his convictions and sentences on December 28, 2011, [3] and the Louisiana Supreme Court denied his related writ application on May 18, 2012.[4]

         On or after July 11, 2017, petitioner filed a motion to correct an invalid sentence with the state district court.[5] That motion was denied on July 27, 2017.[6] His related writ applications were likewise denied by the Louisiana Fifth Circuit Court of Appeal on September 21, 2017, [7] and the Louisiana Supreme Court on October 15, 2018.[8]

         On or after January 29, 2019, petitioner filed the instant federal application seeking habeas corpus relief pursuant to 28 U.S.C. § 2254.[9] The state filed a response arguing that the application is untimely.[10] The state is correct.

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a petitioner is generally required to bring his § 2254 claims within one (1) year of the date on which his underlying state criminal judgment became “final.” 28 U.S.C. § 2244(d)(1)(A).[11] With respect to determining the date of finality, the United States Fifth Circuit Court of Appeals has explained:

The statute of limitations for bringing a federal habeas petition challenging a state conviction begins to run on “the date on which the [state] 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). When a habeas petitioner has pursued relief on direct appeal through his state's highest court, his conviction becomes final ninety days after the highest court's judgment is entered, upon the expiration of time for filing an application for writ of certiorari with the United States Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003).

Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008).

         As noted, the Louisiana Supreme Court denied petitioner's direct-review writ application on May 18, 2012. Accordingly, his state criminal judgment became final for AEDPA purposes on August 16, 2012. As a result, his one-year federal limitations period commenced on that date and then expired on August 16, 2013, unless that deadline was extended through tolling.

         The Court first considers statutory tolling. The AEDPA provides: “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). However, petitioner had no such applications pending before the state courts on or before August 16, 2013.[12] Therefore, he clearly is not entitled to statutory tolling.[13]

         The Court must next consider equitable tolling. The United States Supreme Court has expressly held that the AEDPA's statute of limitations is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010). However, “equitable tolling is unavailable in most cases ….” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999); accord Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998) (holding that the AEDPA's statute of limitations can be equitably tolled “in rare and exceptional circumstances”). Indeed, the Supreme Court held that “a petitioner is entitled to equitable tolling only if he shows both that (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing.” Holland, 560 U.S. at 649 (internal quotation marks omitted). A petitioner bears the burden of proof to establish entitlement to equitable tolling. Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002). In the instant case, petitioner has brought forth no evidence demonstrating that he is entitled to such tolling, and this Court knows of no reason that would support equitable tolling of the statute of limitations.

         Lastly, the Court notes that a petitioner can overcome the AEDPA's statute of limitations by making a convincing claim of “actual innocence” under McQuiggin v. Perkins, 569 U.S. 383 (2013). In Perkins, the United States Supreme Court held:

This case concerns the “actual innocence” gateway to federal habeas review applied in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), and further explained in House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). In those cases, a convincing showing of actual innocence enabled habeas petitioners to overcome a procedural bar to consideration of the merits of their constitutional claims. Here, the question arises in the context of 28 U.S.C. § 2244(d)(1), the statute of limitations on federal habeas petitions prescribed in the Antiterrorism and Effective Death Penalty Act of 1996. Specifically, ... can the time bar be overcome by a convincing showing that [the petitioner] committed no crime?
We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, expiration of the statute of limitations. We caution, however, that tenable actual-innocence gateway pleas are rare: “[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U.S., at 329, 115 S.Ct. 851; see House, 547 U.S., at 538, 126 S.Ct. 2064 (emphasizing that the Schlup standard is “demanding” and seldom met).

Perkins, 569 U.S. at 386.

         Here, petitioner has not invoked Perkins. However, in the event he does so in any objections to this Report and Recommendation, the undersigned finds that he has not made the showing required under Perkins for the following reasons.

         Petitioner was convicted of aggravated rape and unauthorized use of a motor vehicle. Under Louisiana law, “Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person's lawful consent. … Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.” La. Rev. Stat. Ann. § 14:41. At the time of the instant offense, Louisiana law further provided, in pertinent part: “Aggravated rape is a rape committed … where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed … [w]hen the victim resists the act to the utmost, but whose resistance is overcome by force.” La. Rev. Stat. Ann. § 14:42.[14] Finally, under Louisiana law, “Unauthorized use of a motor vehicle is the intentional taking or use of a motor vehicle which belongs to another, either without the other's consent, or by means of fraudulent conduct, practices, or representations, but without any intention to deprive the other of the motor vehicle permanently.” La. Rev. Stat. Ann. § 14:68.4.

         In assessing a petitioner's claim of actual innocence, a court normally first examines the evidence presented at trial and on which the conviction was based. See, e.g., Johnson v. Cain, Civ. Action No. 14-543, 2015 WL 4528889, at *3 (E.D. La. July 27, 2015), aff'd, 667 Fed.Appx. 474 (5th Cir. 2016); Lyles v. Tanner, Civ. Action No. 13-655, 2014 WL 4674673, at *6 (E.D. La. ...


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