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tolling period ended on January 12, 2001, the date of the writ denial
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CIVIL ACTION NO. 01-1958 SECTION "H"
October 15, 2001
ORDER AND REASONS
Ronnie Chester's pro se petition for post-conviction relief pursuant to 28 U.S.C. § 2254 was considered on memoranda. The state has not responded as to the merits of petition; its memorandum raises only the contention that petitioner's claims are time barred. Upon review of the entire record, including the state court record, it is clear that petitioner's, federal habeas claims are not time barred. However, it appears that eight of petitioner's ten federal habeas claims may be procedurally barred.
On October 26, 1994 following a jury trial, petitioner was convicted of one count of possession of stolen property with a value of five hundred dollars or more (La.Rev.Stat. 14:69). Thereafter, the state filed a bill of information, citing five predicate convictions and charging petitioner as a habitual offender pursuant to L.S.A.-R.S. 15:529.1. On March 1, 1995, the state trial judge sentenced petitioner to a term of three years imprisonment, with credit for time served. On June 7, 1995, Chester was adjudicated a multiple offender and sentenced to life imprisonment, without benefit of probation, parole or suspension of sentence.
Petitioner appealed his conviction and sentence, claiming that: (1) there was insufficient evidence of guilt on his underlying conviction (La.Rev.Stat. 14:69); (2) ineffective assistance of counsel at his habitual offender proceedings; and (3) the state trial court erred in denying his motion to recuse the district attorney at trial, in failing to vacate his original three-year sentence prior to imposing the enhanced sentence, and in considering inadmissible documents during the habitual offender proceedings. The Louisiana First Circuit Court of Appeal, reaching only the first assignment of error (insufficiency of the evidence), reversed petitioner's underlying conviction, multiple offender adjudication and sentence. State v. Chester, 95-KA-1428, 698 So.2d 1065 (La.App. 1st Cir. 7/27/97) (Table). The state filed an application to the Louisiana Supreme Court for emergency supervisory writs and a motion for stay of execution of judgment, which were granted. The Louisiana Supreme Court vacated the judgment of the court of appeal, reinstated petitioner's conviction and sentence, and remanded to the Louisiana First Circuit with instructions to consider the remaining assignments of error. State v. Chester, 97-K-1001, 707 So.2d 973, 975 (La. 12/19/97)( per curiam).
On remand, the Louisiana First Circuit affirmed petitioner's conviction. The appellate court also vacated petitioner's original three year sentence but did so only "out of an abundance of caution, " finding that it was apparent from the trial court's actions that he intended to vacate petitioner's original sentence. State v. Chester, 95-KA-1428R, 720 So.2d 469 (La.App. 1st Cir. 6/29/98) (Table). The court of appeal rejected petitioners remaining challenges, holding that: (1) petitioner s claim of trial court error in failing to grant the motion to recuse was procedurally defaulted because defense counsel failed to file a written motion as required by La.C.Cr.P. articles 8 and 934(5); and (2) his remaining claims were without merit because proof of his multiple offender status was sufficient and because petitioner stipulated to at least three predicate convictions, which together with the underlying conviction (La.Rev.Stat. 14:69) was sufficient to support his multiple offender adjudication and the imposition of a life sentence.
Petitioner then applied for supervisory writs to the Louisiana Supreme Court, raising only one assignment of error, arguing that the court of appeal erred in vacating his original three year sentence which had been served. The Louisiana Supreme Court denied supervisory writs. State v. Chester, 728 So.2d 1288 (La. 11/20/98).
On February 26, 1999, petitioner filed a uniform application for post-conviction relief with the state trial court, which was denied. Thereafter, petitioner filed an application for supervisory writs in the court of appeal, which the Louisiana First Circuit denied, and in the Louisiana Supreme Court, which denied petitioner's application for supervisory writs, citing state procedural grounds. See State ex rel. Ronnie Chester v. State, 2000-KH-1190, 780 So.2d 1066 (La. 1/12/01) (citing L.C.Cr.P., art. 930.3 and State v. Melinie, 665 So.2d 1172 (La. 1996)).
On September 13, 2000 while petitioner's application for supervisory writs was pending review in the Louisiana Supreme Court, petitioner filed an Article 882 Motion to Correct Illegal Sentence in the state trial court, claiming that: (1) his enhanced sentence was illegal and unconstitutionally excessive; and (2) the trial court improperly imposed an enhanced sentence because it did not specify which predicate offenses supported enhancement of petitioner's sentence and because the predicate offenses fail to meet the requirements of La.Rev.Stat. 15:529.1. Those claims duplicated petitioner's state habeas claims pending review by the Louisiana Supreme Court, which that court later dismissed as procedurally defaulted. On December 7, 2000, petitioner filed a duplicate Article 882 motion in the state trial court which remains pending. On June 20, 2001, petitioner filed the instant petition.
Petitioner's claims in this court mirror his state habeas claims which were dismissed by the Louisiana Supreme Court as procedurally defaulted, to wit:
• the state trial court erred in failing to vacate his original sentence prior to sentencing him as a multiple offender, the appellate court abused its discretion when it failed to acknowledge the trial court error, and his sentence is null and void;
• the state trial court erred in failing to require the state to prove that the five year "cleansing period" had not run with respect to his predicate offenses in violation of his due process rights;
• the state trial court erred in failing to require the state to prove the sequence of his predicate convictions in violation of his due process rights;
• the state trial court erred in allowing the state to prove his habitual offender status on the basis of uncertified, unofficial documents, all in violation of his due process rights;
• the state trial court failed to provide written reasons for his sentencing determination in violation of petitioner's due process rights;
• his sentence enhancement under La.Rev.Stat. 15:529.1 constitutes an ex post facto application of the law;
• the enhanced life sentence pursuant to La.Rev.Stat. 15:529.1 is unconstitutionally excessive;
• ineffective assistance of counsel at his habitual offender proceedings in violation of the Sixth Amendment;
• the state trial court erred in denying defense counsel's oral motion at trial to recuse the assistant district attorney in violation of his due process and equal protection rights; and
• insufficiency of evidence to support his October 26, 1994 conviction (La.Rev.Stat. 14:69).
Petitioner has exhausted his available state court remedies. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The fact that petitioner's state court Motion to Correct illegal Sentence is still pending does not negate total exhaustion, because the grounds supporting that motion duplicate his habeas claims presented to and denied by the Louisiana Supreme Court as procedurally defaulted. "Only one avenue of post-conviction relief need be exhausted." See Bledsue v. Johnson, 188 F.3d 250, 254 n. 8 (5th Cir. 1999); and Fisher v. State of Texas, 169 F.3d 295, 303 (5th Cir. 1999) (noting that exhaustion of state remedies would be futile where the highest state court recently rejected petitioner's claim).
TIME BAR
Petitioner filed the instant federal application for habeas corpus relief on June 20, 2001, (the earliest possible filing date pursuant to the "mailbox rule"). The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA) was amended 28 U.S.C. § 2244 to establish a one-year limitation period for filing a federal habeas corpus petition.
Title 28 U.S.C. § 2244 (d) provides:
(d)(l) a 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person 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 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 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) 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.
Under § 2244(d)(1) petitioner had 365 days after his conviction became final to file his petition for federal habeas corpus relief, tolled only for the days on which a "properly filed" application for state habeas relief was pending. Section 2244(d)(1)(A) takes into account the time for filing a certiorari petition with the United States Supreme Court in determining the finality of a conviction. See Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (explaining that judicial efficiency does not require a petitioner to begin federal habeas proceedings until the state conviction becomes final upon direct review, which occurs upon denial of certiorari by the Supreme Court or the expiration of the ninety-day period for seeking certiorari).
The latest day on which petitioner's conviction could be deemed final is February 18, 1999 (ninety-days after the Louisiana Supreme Court denied petitioner's application for supervisory writs on direct review). See State v. Chester, 728 So.2d 1288 (La. 11/20/98).
Eight days elapsed untolled before February 26, 1999, when petitioner timely filed an application for post-conviction relief with the state trial court. That left a balance of three hundred fifty-seven days of the AEDPA's one year limitation period. The pendency that application tolled the running of the one year limitations period of the AEDPA until September 15, 1999 (30 days after the trial court's August 16, 1999 ruling denying state habeas relief).
Louisiana Courts of Appeal Uniform Rule 4-3 provides:
When an application for writs is sought to review the actions of a trial court, the trial court shall fix a reasonable time within which the application shall be filed in the appellate court, not to exceed thirty days form the date of the ruling at issue. Upon proper showing, the trial court or the appellate court may extend the time for filing the application upon the filing of a motion for extension of return date by applicant, filed within the original or an extended return period. An application not filed in the appellate court within that time so fixed or extended shall not be considered, in the absence of a showing that the delay in filing was not due to the applicant's fault. The application for writs shall contain documentation of the return date and any extensions thereof; any application which does not contain the this documentation may not be considered by the appellate court.
Sixteen days elapsed untolled prior to petitioner's October 1, 1999 application for supervisory writs to the Louisiana First Circuit , which was not timely within the requisite thirty-day time period set forth in Louisiana Court of Appeal Rule 4-3. Despite the untimeliness, the state court of appeal considered petitioner's writ application on the merits; thus its pendency tolled the period from October 1, 1999 through April 9, 2000 (30 days after the Louisiana First Circuit denied relief on the merits). See Melancon v. Kaylo, 259 F.3d 401, 407 (5th Cir. 8/6/2001) (holding that when a state court allows review of an untimely application the AEDPA's one year time period is tolled only during the time that the application is pending, but not during the time prior to the untimely filing). Thus as of April 9, 2000, three hundred forty-one days (357 days minus 16 days) remained of the AEDPA's one year limitation period.
Eighteen days elapsed untolled prior to petitioner's April 27, 2000 application for supervisory writs to the Louisiana Supreme Court. That application failed to comply with the thirty day time limit set forth in Louisiana Supreme Court Rule X, § 5(a). Despite the untimeliness, the Louisiana Supreme Court accorded petitioner's application some level of judicial review, finding it procedurally defaulted; thus its pendency tolled the period from April 27, 2000 through January 12, 2001, the date on which the Louisiana Supreme Court denied the application. See Dilworth v. Johnson 215 F.3d 497, 501 (5th Cir. 2000)(petitioner's application is considered "properly filed" under § 2244(d)(2) when it has been "accorded some level of judicial review by the state courts"); and Melancon, supra. Thus as of January 12, 2001, three hundred twenty-three days (341 days minus 18 days) remained of the AEDPA's one year limitation period.
Thus, even without considering the effect of petitioner's Motion to Correct Illegal Sentence filed in the state trial court on September 13, 2000, which remains pending, petitioner's instant federal application filed on June 20, 2001 is timely filed.
PROCEDURAL BAR
Absent a showing of "cause" and "actual prejudice, " it appears that petitioner's federal habeas claims are procedurally barred, with the exception of petitioner's challenges to the sufficiency of the evidence and appellate court error in vacating petitioner's original three-year sentence, the only two assignments of error presented to the Louisiana Supreme Court on direct review.
In Coleman v. Thompson, 498 U.S. 937, 111 S.Ct. 340, 112 L.Ed.2d 305 (1990), the United States Supreme Court granted certiorari to resolve several issues concerning the relationship between state procedural defaults and federal habeas review. The Coleman Court explained:
This Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground which is independent of the federal question and adequate to support the judgment. This rule applies whether the state law ground is procedural or substantive. In the context of direct review of a state court judgment, the independent and adequate state law ground is jurisdictional.
* * *
In the habeas context, the application of the independent and adequate state law ground doctrine is grounded in concerns of comity and federalism. Without this rule, a federal district court would be able to do what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by adequate and independent state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.501 U.S. 722, 735, 111 S.Ct. 2546, 2553-2554, 115 L.Ed. 640 (1991), reh'g denied, 501 U.S. 1277, 112 S.Ct. 27, 115 L.Ed.2d 1109 (1991) (citations omitted).
Generally, a federal court will not review a question of federal law decided by a state court if that decision rests on a state ground that is both independent of the federal question and adequate to support the judgment. Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995), cert. denied, 504 U.S. 1005, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995) (citing Harris v. Reed, 489 U.S. 255, 260, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989)). Procedural default does not bar federal review of a claim raised in a habeas petition unless the last state court rendering a judgment in the case has clearly and expressly indicated that its judgment is independent of federal law and rests on a state procedural bar. Harris v. Reed, 489 U.S. at 263, 109 S.Ct. at 1043.
The Louisiana Supreme Court refused to consider the merits of Chester's claims, specifically articulating state procedural grounds, Louisiana Code of Criminal Procedure Article. 930.3 and State v. Melinie, 665 So.2d 1172 (La. 1996). Article 930.3 provides:
If the petitioner is in custody after sentence for conviction for an offense, relief shall be granted only on the following grounds:
(1) The conviction was obtained in violation of the constitution of the United States or the state of Louisiana;
(2) The court exceeded its jurisdiction;
(3) The conviction or sentence subjected him to double jeopardy;
(4) The limitations of the institution of prosecution had expired;
(5) The statute creating the offense for which he was convicted and sentenced is unconstitutional; or
(6) The conviction or sentence constitute the ex post facto application of law in violation of the constitution of the United States or the state of Louisiana.
In Melinie, supra, the Louisiana Supreme Court ruled that Article 930.3 provides no basis for review of claims of excessiveness or other sentencing errors post-conviction. These claims, which could be raised on direct appeal, were not grounds for post conviction relief. 665 So.2d 1172 (La. 1996). In State v. Hebreard, 708 So.2d 1291 (La.App. 4th Cir. 1998), the Louisiana Fourth Circuit Court of Appeal interpreting Melinie held that claims challenging multiple offender adjudications are not appropriate grounds for consideration on post-conviction review under Article 930.3. Id., at 1292.
"[A] federal court may not consider a state prisoner's federal habeas claim when the state based its rejection of that claim on an adequate and independent state ground." Martin v. Maxey, 98 F.3d 844, 846 (5th Cir. 1996) (citing Coleman, 111 S.Ct. at 2565). The "independent" requirement is met if the last state court rendering a judgment in the case "clearly and expressly" indicates that its judgment is independent of federal law and rests on a state procedural bar. Amos, 61 F.3d at 338. The Louisiana Supreme Court's ruling denying Chester's application for supervisory writs satisfies the "independent" requirement.
A procedural bar is "adequate" if it is applied "strictly or regularly" to the "vast majority of similar claims." Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997), cert. denied, 523 U.S. 1125, 118 S.Ct. 1811, 140 L.Ed.2d 949 (1998); Amos, 61 F.3d at 339. A state procedural rule enjoys a presumption of adequacy when the state court expressly relies upon it in deciding not to review a claim for collateral relief. Glover, 128 F.3d at 902. The burden is on petitioner to establish that the state's procedural bar rule was not strictly and regularly followed at the time of his direct appeal. Martin v. Maxey, 98 F.3d 844, 847 (5th Cir. 1996) (citing Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995)).
A state fails to strictly and regularly apply a procedural rule only when the state "clearly and unequivocally excuse[s] the procedural default." Id., (citing Amos, 61 F.3d at 342). Moreover, the state must fail to apply the rule to claims "identical or similar" to the petitioner's claim. Amos, 61 F.3d at 341. De minimis exceptions will not preclude the state from asserting the procedural default doctrine; "an occasional act of grace by a state court in excusing or disregarding the state procedural bar rule does not render the rule inadequate." Martin v. Maxey, 98 F.3d at 848 (citing Amos, 61 F.3d at 342.
Review of Louisiana jurisprudence since the decision of Melinie, supra, establishes that the Louisiana courts regularly invoke the statutory procedural bar together with the Melinie decision to bar review of post-conviction challenges to multiple offender adjudications.
Because there are adequate and independent state grounds to support the ruling of the Louisiana Supreme Court, all but two of petitioner's federal habeas claims are barred unless he can show cause for the procedural default and actual prejudice. See Coleman v. Thompson, 111 S.Ct. 2546, 2553-54 (1991). A petitioner may overcome a procedural default, whether the default was purposeful or inadvertent, if he can show cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 111 S.Ct. at 2564. To demonstrate cause petitioner must prove that some condition external to the defense impeded his efforts to comply with the procedural rules, that the factual or legal basis of a claim was not available to counsel, or that governmental interference rendered procedural compliance impractical. Murray v. Carriere, 477 U.S. 478, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986).
"'A federal district court may, in the exercise of its discretion, raise a habeas petitioner's procedural default sua sponte and then apply that default as a bar to further litigation of petitioner's claims."' Johnson v. Cain, 215 F.3d 489, 495 (5th Cir. 2000) (citing Magouirk v. Phillips. 144 F.3d 348, 358 (5th Cir. 1998)). Due process requires that the court provide the habeas petitioner with notice that procedural default is an issue for consideration by the habeas court, and a reasonable opportunity to respond. See Johnson, 215 F.3d at 495.
Notwithstanding the state's obligation to raise and preserve the issue of procedural default, there are situations when the omission is not the result of a deliberate decision to forego the defense. See Magouirk v. Phillips, 144 F.3d at 359. This case does not involve a conscious waiver of the defense. The entire focus of the state's response was a time bar defense, never reaching the issue of other procedural defenses or the merits of petitioner's claims. The state's response, however incorrect and limited, did not constitute a waiver of a procedural default defense.
Accordingly, for the foregoing reasons,
IT IS ORDERED that the state's time-bar objection is OVERRULED; IT IS FURTHER ORDERED that on or before October 31, 2001, petitioner shall file a memorandum in response to this order, showing cause why his federal habeas claims should not be dismissed as procedurally barred.
IT IS FURTHER ORDERED that on or before November 15, 2001, the state shall file a memorandum replying to petitioner's response to this show cause order and to the merits of petitioner's federal habeas claims.
New Orleans, Louisiana, this 15th day october, 2001.
Adrian Duplantier, United State District Judge