Opinion
Civil Action 23-5526
01-25-2024
SKYLLEUR HAYES v. TIM HOOPER, WARDEN
SECTION: “J” (1)
REPORT AND RECOMMENDATION
JANIS VAN MEERVELD UNITED STATES MAGISTRATE JUDGE
Petitioner, Skylleur Hayes, a Louisiana state prisoner, filed this application seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254. For the following reasons, the application should be DISMISSED WITH PREJUDICE as untimely.
Rec. Doc. 3.
On August 20, 2015, petitioner was convicted of second degree murder. On December 7, 2015, he was sentenced on that conviction to a term of life imprisonment without benefit of probation, parole, or suspension of sentence. The Louisiana First Circuit Court of Appeal affirmed that conviction and sentence on September 19, 2016. The Louisiana Supreme Court then denied petitioner's related writ application on September 6, 2017.
Rec. Doc. 13, pp. 297-98 and 1455. On that same date, petitioner was also convicted of possession of a firearm by a convicted felon. Although the murder charge and firearm charge were filed under separate docket numbers, they were tried together. Petitioner did not challenge the firearm conviction on either state direct or collateral review, and he likewise does not challenge it in this federal proceeding. However, even if he had, any federal challenge to the firearm conviction would likewise be untimely.
Rec. Doc. 13, pp. 299 and 1459-64.
State v. Hayes, 204 So.3d 201 (La.App. 1st Cir. 2016); Rec. Doc. 13, pp. 387-98.
State v. Hayes, 224 So.3d 979 (La. 2017); Rec. Doc. 13, p. 476.
On September 4, 2018, petitioner challenged that conviction by filing an application for post-conviction relief with the state district court. After the state district court denied him post- conviction relief, petitioner's related writ applications were then likewise denied by the Louisiana First Circuit Court of Appeal on August 2, 2022, and the Louisiana Supreme Court on May 2, 2023.
Rec. Doc. 13, pp. 477-526. Federal habeas courts must apply Louisiana's “mailbox rule” when determining the filing date of a Louisiana state court filing by a pro se prisoner, and therefore such a document is considered “filed” as of the moment the prisoner “placed it in the prison mail system.” Causey v. Cain, 450 F.3d 601, 607 (5th Cir. 2006). Because that date cannot be gleaned from the state court record with respect to petitioner's state post-conviction application, the Court has simply used the signature date of the application as its filing date, in that the application was obviously placed in the prison mail system no earlier than the date on which it was signed. See United States v. Minor, 582 Fed.Appx. 315, 316 (5th Cir. 2014); Estes v. Boutte, Civ. Action No. 19-2289, 2020 WL 1990823, at *2 (E.D. La. Mar. 6, 2020), adopted, 2020 WL 1984331 (E.D. La. Apr. 27, 2020); Crochet v. Goodwin, Civ. Action No. 13-3106, 2014 WL 5093995, at *2 n.10 (E.D. La. Oct. 8, 2014); Thornton v. Terrell, Civ. Action No. 09-1631, 2009 WL 4855743, at *1 n.1 (E.D. La. Dec. 4, 2009).
State v. Hayes, No. 2022 KW 0615, 2022 WL 3074135 (La.App. 1st Cir. Aug. 2, 2022); Rec. Doc. 13, p. 740.
State v. Hayes, 359 So.3d 1271 (La. 2023); Rec. Doc. 13, pp. 1473-74.
On September 26, 2023, petitioner filed the instant application seeking federal habeas corpus relief. The state opposes that application, arguing that it is untimely. The state is correct.
Rec. Doc. 3. “A prisoner's habeas application is considered ‘filed' when delivered to the prison authorities for mailing to the district court.” Roberts v. Cockrell, 319 F.3d 690, 691 n.2 (5th Cir. 2003). Petitioner has declared under penalty of perjury that his application was placed in the prison mail system on September 26, 2023. Rec. Doc. 3, p. 25.
Rec. Doc. 12.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) includes a statute of limitations for petitioners seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Specifically, the AEDPA provides:
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 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.28 U.S.C. § 2244(d)(1).
Because petitioner does not allege the existence of a state-created impediment, a newly recognized constitutional right, or a newly discovered factual predicate, Subsections B, C, and D are inapplicable in the instant case. Accordingly, Subsection A controls, and so his federal limitations period commenced on the date his state court judgment became final.
With respect to determining that 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).
Therefore, petitioner's state criminal judgment became final for federal purposes on December 5, 2017, i.e. ninety days after the Louisiana Supreme Court denied his direct-review writ application on September 6, 2017. Accordingly, in order to be timely, this federal application had to be filed within one year of that date, unless that deadline was extended through tolling.
State v. Hayes, 224 So.3d 979 (La. 2017); Rec. Doc. 13, p. 476.
The Court first considers statutory tolling. Regarding the limitations period set forth in § 2244(d)(1), federal law 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).
After two hundred seventy-two (272) days elapsed, petitioner tolled the federal limitations period by filing a post-conviction application with the state district court on September 4, 2018.Although that application was denied by the district court, it nevertheless remained “pending” for § 2244(d)(2) purposes for the duration of the post-conviction proceedings, so long as petitioner continued to seek review at the higher levels of the state court system in a timely manner. Grillette v. Warden, Winn Correctional Center, 372 F.3d 765, 769-71 (5th Cir. 2004). Here, the state does not dispute that petitioner's related writ applications were timely filed. Accordingly, the Court finds that tolling continued until the Louisiana Supreme Court ultimately denied relief on May 2, 2023.
Rec. Doc. 13, pp. 477-526.
State v. Hayes, 359 So.3d 1271 (La. 2023); Rec. Doc. 13, pp. 1473-74. The limitations period resumed running once the Louisiana Supreme Court denied petitioner's collateral-review writ application, because a petitioner receives no additional tolling credit for the period during which he could have sought review by the United States Supreme Court with respect to the denial of post-conviction relief. Lawrence v. Florida, 549 U.S. 327, 332 (2007); Ott v. Johnson, 192 F.3d 510, 512-13 (5th Cir. 1999).
Once the limitations period resumed running at that point, petitioner had ninety-three (93) days remaining. Accordingly, he had only until August 3, 2023, either to again toll the limitations period or to file his federal application.
Petitioner had no other applications pending before the state courts at any time on or before August 3, 2023. Therefore, he clearly is not entitled to further statutory tolling.
The Court next considers 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 whatsoever 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, it must also be noted 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; see Schlup, 513 U.S. at 324 (“Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.”).
Here, petitioner does not expressly invoke 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.
As noted, petitioner was convicted of second degree murder. Louisiana law defines that offense as, inter alia, “the killing of a human being .. [w]hen the offender has a specific intent to kill or to inflict great bodily harm.” La. Rev. Stat. Ann. § 14:30.1(A)(1). “Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act. Specific intent need not be proved as a fact; it may be inferred from the circumstances of the transaction and the actions of the defendant.” State v. Golson, 658 So.2d 225, 230 (La.App. 2d Cir. 1995) (citations omitted). “Specific intent to kill or inflict great bodily harm can be inferred from a shooting which occurs at a fairly close range.” State v. Harris, 859 So.2d 690, 693 (La.App. 4th Cir. 2003); accord Robinson v. Cain, Civ. Action No. 07-3651, 2010 WL 3170257, at *10 (E.D. La. Mar. 19, 2010), adopted, 2010 WL 3170081 (E.D. La. Aug. 6, 2010).
In assessing a claim of actual innocence, a court normally first examines the evidence presented at trial and on which the petitioner's 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), affd, 667 Fed.Appx. 474 (5th Cir. 2016); Lyles v. Tanner, Civ. Action No. 13-655, 2014 WL 4674673, at *6 (E.D. La. Sept. 17, 2014). In the instant case, the Louisiana First Circuit Court of Appeal summarized that evidence as follows:
At approximately 10:20 a.m. on March 28, 2014, Barbara Baker called 911 and requested that police come to her apartment because the defendant, her on-and-off boyfriend, was there with a gun. She indicated that the defendant had just left, but was coming back, and that she would leave the back door open for the police to sneak up on him. The defendant had walked out of the apartment in search of cigarettes, but ran back inside after seeing a policeman who he mistakenly thought was his probation officer. The defendant locked all of the doors and picked up his .380 caliber semi-automatic pistol. When he saw more police arriving, he and Baker moved into a small bathroom. As the defendant stood in front of the sink and Baker sat on the toilet, the defendant shot Baker in the head killing her. During hostage negotiations, the defendant released his and Baker's one-year-old child, who was also in the apartment, in exchange for a cigarette. The defendant was apprehended hiding in the attic of an adjoining apartment, and in a recorded statement, admitted that he shot Baker.
State v. Hayes, 204 So.3d 201, 203-04 (La.App. 1st Cir. 2016); Rec. Doc. 13, p. 388.
Finally, the habeas court considers the evidence a petitioner submits in support of his claim of actual innocence. That evidence must be both new and particularly compelling. Here, however, petitioner has presented no new evidence whatsoever, compelling or otherwise. Accordingly, he has not met even “the threshold requirement” for Perkins to apply. Perkins, 569 U.S. at 386. As a result, the “actual innocence” exception does not aid him.
Because petitioner is not entitled to further statutory tolling, and because he has not established that he is eligible for equitable tolling or that the Perkins “actual innocence” exception applies, his federal application for habeas corpus relief had to be filed no later than August 3, 2023, in order to be timely. However, as petitioner himself admits, his application was not filed until September 26, 2023. Accordingly, it is clearly untimely.
Rec. Doc. 3, p. 25.
RECOMMENDATION
It is therefore RECOMMENDED that the federal habeas corpus application filed by Skylleur Hayes be DISMISSED WITH PREJUDICE as untimely.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. 28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).