Opinion
No. 00-2269, SECTION: "D"(6)
September 28, 2001
REPORT AND RECOMMENDATION
This matter was referred to the United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings and recommendations for disposition pursuant to Title 28, United States Code, Sections 636(b)(1)(B) and (C), and, as applicable, Rule 8(b) of the Rules Governing Section 2254 cases. On March 19, 2001, an evidentiary hearing was held in this matter, on the issue of whether the federal habeas application was timely filed. Upon review of the entire record and having considered the testimony and evidence submitted at the evidentiary hearing, it is hereby recommended that the instant petition be DENIED WITH PREJUDICE AS UNTIMELY. Procedural History
Petitioner, Kerry Myers, is a state prisoner currently incarcerated in the state penitentiary at Angola, Louisiana. On October 8, 1987, Myers and a co-defendant, William Fontanille, were indicted by a grand jury for the second degree murder of Myers' wife, Janet Myers. Both defendants were tried together, albeit with separate fact-finders, on March 26, 1990 through April 5, 1990. Myers was found guilty of second degree murder by the trial judge and was sentenced to life imprisonment on May 3, 1990.
Myers and Fontanille also were indicted with criminal conspiracy, pursuant to LSA-R.S. 14:26. The conspiracy charges were subsequently severed from the second degree murder charges. See State Rec. Vol. 1 at p. 119. A full recitation of the facts relevant to Myer's crime is unnecessary to dispose of this petition but can be found in State v. Myers , 584 So.2d 242 (La.App. 5th Cir. 1991).
Myers elected to waive his right to trial by jury and was tried by state district judge, Ernest v. Richards, IV. Fontanille elected to have a trial by jury.
See State Rec. Vol. 1 at. p. 21g-21v. See also State Rec. Vol. 5 at p. 1074 through Vol. 12, p. 2827.
See State Rec. Vol. 1 at p. 21u; Vol. 4 at p. 768d, Vol. 12 at p. 2824. The jury found co-defendant, William Fontanille, guilty of manslaughter. Fontanille was sentenced to 20 years at hard labor. Vol. 1 at p. 21u; Vol. 4 at p. 795; Vol. 12 at p. 2824.
Myers' direct appeal was affirmed by the Louisiana Court of Appeal for the Fifth Circuit on June 26, 1991, State v. Myers , 584 So.2d 242 (La.App. 5 Cir. 1991) (NO. 90-KA-539), and the Louisiana Supreme Court denied his request for a writ of review on November 1, 1991. State v. Myers , 588 So.2d 105 (La. 1991) (NO. 91-K-1791). Myers next sought a writ of certiorari with the United States Supreme Court, which was denied on May 18, 1992. Myers v. Louisiana , 504 U.S. 912, 112 S.Ct. 1945, 118 L.Ed.2d 550 (1992) (NO. 91-1485). Myers' conviction and sentence thus became final on May 18, 1992.
Myers filed his first application for state post-conviction relief (PCR) in the trial court on October 27, 1994. The state district judge denied post-conviction relief on February 7, 1995. After being granted extensions of time, Myers sought review of this decision in the court of appeal by filing a writ application on June 14, 1995. On July 13, 1995, the Louisiana Court of Appeal for the Fifth Circuit denied review. On August 14, 1995, Myers, through counsel, Andrew Kelly, filed a writ application with the Louisiana Supreme Court. The state's highest court denied the request on November 17, 1995.
See State Rec. Vol. 16. October 27, 1994 is the date petitioner signed his state petition and submitted it to his custodian at Angola. Louisiana courts appear to follow the principles set out in Houston v. Lack , 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) and consider a pro se prisoner's filing date to be the date the prisoner delivered the application to the penitentiary authorities. See e.g. State ex rel. Johnson , 648 So.2d 909 (La. 1995).
See State Rec. Vol. 16.
State Rec. Vol. 16. Although both the State and Myers identify the relevant date as June 19, 1995, the Court uses the date when the cover page of the application was stamped as "received" by the state appellate court. The date that the application was signed by Myers is not indicated on the application itself.
See State Rec. Vol. 16.
See State Rec. Vol. 16. See also State v. Myers , 663 So.2d 714 (La. 1995) (NO. 95-KK-2086).
Myers filed a second state PCR application, through counsel, on November 15, 1996. The application was denied by the state trial court on November 4, 1997 and no further appeal of this writ denial was taken.
See State Rec. Vol. 17, Application for Post-Conviction Relief, stamped "filed" on November 15, 1996. Also see Trial Court's Ruling on (Second) Application for Post-Conviction Relief, stating that November 15, 1996 was the filing date on the application. Accordingly, the court finds that the November 5, 1996 date set forth in Myer's memorandum of law on the issue of timeliness is incorrect.
See State Rec. Vol. 17, Trial Court Ruling — 2nd Post Conviction Relief.
On May 7, 1998, Myers, through counsel, Andrew Kelly, filed a third application for state post-conviction relief in the state trial court. The application was subsequently supplemented on November 25, 1998. The trial court rendered a decision, denying post-conviction relief on January 25, 1999. On or about September 21, 1999, petitioner filed a writ of mandamus with the Louisiana Court of Appeal, Fifth Circuit, requesting that the appellate court order the lower court to rule on petitioner's third PCR application. As the trial court had already ruled, the Louisiana Fifth Circuit treated petitioner's application as a request for review of the lower court's decision. The court denied relief on October 1, 1999, stating: "Writ Denied. On the presentation, the application discloses no error in the trial court's ruling of January 25, 1999 on relator's Application and Supplemental Application for Post Conviction Relief. Accordingly, this writ application is denied." On October 29, 1999, Myers timely sought review of this decision with the Louisiana Supreme Court. The highest state court denied relief on May 26, 2000.
The trial court's order to the State to file a response indicates that the filing date of the third PCR was May 11, 1998. Yet, the trial court's order denying relief indicates that the third PCR application was filed on May 7, 1998. See State rec. Vol. 18. The stamped date on the application itself is very faint but reveals a legible "7", likely indicating the date to be May 7, 1998. The court thus construes the date to be May 7, 1998, in favor of petitioner.
A writ of mandamus was filed despite the fact that petitioner's counsel was aware that the trial court had ruled on January 25, 1999. Counsel prepared an affidavit notifying the state court that he first learned of the lower court's denial of the third PCR application on August 23rd, 1999 through a telephone conversation with an employee of the 24th JDC's law library. See Affidavit of Andrew Kelly, State Rec. Vol. 19. See also Kelly testimony at federal evidentiary hearing, Rec. Doc. 26 at p. 15 and 18.
See State Rec. Vol. 19.
State ex ret. Myers v. State , 762 So.2d 1096 (La. 2000).
On July 27, 2000, Myers filed the instant action for federal habeas relief raising nine claims. The State filed it's response to Myers' habeas petition on October 27, 2000, therein conceding that Myers has exhausted his state court remedies. See Rose v. Lundy , 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Dupuy v. Butler , 837 F.2d 699, 702 (5th Cir. 1988). The State, however, argues that Myers' petition should be dismissed as time-barred, pursuant to Title 28, United States Code, Section 2244(d)(1). After consideration of the testimony and evidence submitted at the hearing held March 19, 2001, and having considered the record and the arguments of counsel, the Court concludes that Myers' habeas corpus petition is subject to dismissal as being untimely.
See Rec. Doc. No. 1. This July 27, 2000, filing date was ascertained via the Court's use of the "mailbox rule." Under this rule, a pleading filed by a prisoner acting pro se is considered to be filed for prescriptive purposes on the date it is delivered to prison officials for mailing, rather than the date it is received by the court. Cooper v. Brookshire , 70 F.3d 377, 379 (5th Cir. 1995). Generally, the date a prisoner signs his petition is presumed to be the date he delivered it to prison officials for mailing. See Colarte v. Leblanc , 40 F. Supp.2d 816, 817 (E.D. La. 1999) (assumed that petitioner turned his habeas corpus application over to prison officials for delivery to this Court on the date he signed his application); Magee v. Cain , 2000 WL 1023423, *4 n. 2 (E.D. La. 2000) (inferred that filing date and signature date of habeas petition were the same); Punch v. State , 1999 WL 562729, *2 n. 3 (E.D. La. 1999) (may reasonably be inferred that prisoner delivered habeas petition to prison officials for mailing on date he signed petition).
See Rec. Doc. No. 12 at p. 5.
ANALYSIS
Under Title 28, United States Code, Section 2244(d)(1)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a petitioner is generally required to bring his habeas corpus claims filed pursuant to Title 28, United States Code, Section 2254 within one year of the date his conviction became final. Myers' state court conviction became final on May 18, 1992, when the U.S. Supreme Court denied Myers' request for writ of certiorari. Thus under the language of the statute, Myers' had until May 18, 1993 to timely seek federal habeas corpus relief. He failed to file by that date.
The AEDPA applies to this case as it was filed after the enactment of the AEDPA, or after April 24, 1996. Lindh v. Murphy , 521 U.S. 320, 117 S.Ct. 2059, 2060, 138 L.Ed.2d 481 (1997).
However, the U.S. Fifth Circuit has held that for a prisoner such as Myers, whose conviction became final prior to the AEDPA's effective date, a one-year grace period, from April 24, 1996 until April 24, 1997, must be allowed during which a petitioner could timely file a federal habeas challenge. Hall v. Cain , 216 F.3d 518, 520 (5th Cir. 2000); Flanagan v. Johnson , 154 F.3d 196, 201-02 (5th Cir. 1998). Thus Myers' one year deadline for filing a federal habeas application is extended until April 24, 1997. Myers, however, did not file the instant action until July 27, 2000 and is still untimely unless there is an additional basis for extending the limitations period.
Title 28, United States Code, Section 2244(d)(2) provides that the one-year limitation period is tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral review . . . is pending." Title 28, United States Code, Section 2244(d)(2) (West 2000). As noted above, subsequent to the AEDPA's enactment date of April 24, 1996, Myers filed his second post-conviction application with the trial court on November 15, 1996, which was denied on November 4, 1997. Myers thus allowed 204 days of his one year limitations period to expire prior to this filing. He next filed a third application for post-conviction relief on May 7, 1998, thus allowing an additional 182 days to expire between November 4, 1997 and May 7, 1998. In other words, petitioner's federal one year limitation expired on April 15, 1998, 22 days before he filed his third post-conviction application. His federal petition is therefore untimely unless petitioner can offer an additional basis for tolling the limitations period. Petitioner attempted to do so during the evidentiary hearing held in March, 2001.
A. The Filing of the Ancillary Civil Action and Tolling Under 28 U.S.C. § 244(d)(2)
Petitioner argued at the hearing and in his post-hearing brief addressing the issue of the timeliness of his federal habeas claims, that this court should toll the limitations period from November 4, 1997 through May 7, 1998, the time which petitioner allegedly pursued an "ancillary" civil action in Orleans Parish Civil District Court. Petitioner argued that this civil litigation "was an essential component of the post-conviction relief effectively demanded by the state district court", and, as such, should be considered part of the post-conviction process which can toll the limitations period under 28 U.S.C. § 2244(d)(2). Alternatively, petitioner argued that the time which he spent pursuing the civil action should toll the limitations period under equitable principles.
The record shows that the civil action, a petition to revoke, was actually filed December 10, 1997 and a ruling rendered on that petition on March 25, 1998. State Rec. Vol. 19.
See Transcript of Evidentiary Hearing at p. 76-79; Petitioner's Memorandum of Law on the Issue of Timeliness at pp. 2-6.
See Transcript of Evidentiary Hearing at p. 79, 87-88; Petitioner's Memorandum of Law on the Issue of Timeliness at pp. 6-13.
At the evidentiary hearing, Myers' post-conviction counsel, Andrew Kelly, related the chronology of Myers' post-conviction proceedings and explained the reasons behind Myers' pursuit of a civil action (a petition to revoke reporter's privilege) in the state courts. Kelly related that when he filed the second, November 15, 1996, state post-conviction petition on Myers' behalf, he had attached an affidavit from witness, Tammy Dubuc. Dubuc's affidavit related information she had gathered from author, Joseph Bosco which was relevant to Myers' case. The Honorable Charles Cusimano denied Myers' basically summarizes information gained from Bosco regarding alleged misconduct on the part of the District Attorney's office and Judge Gothard of the Louisiana Fifth Circuit Court of Appeal; misconduct which includes allegations of the withholding of exculpatory evidence from the defense and of collusion between the prosecutor and the judge. Dubuc's affidavit was characterized as "new evidence" in the second post-conviction application, having allegedly been first acquired "several months" after the November 1995 denial of Myers' first post-conviction application by the Louisiana Supreme Court. See Section V. of second post-conviction application, State Rec. Vol. 17.
Bosco authored the book, " Blood Will Tell: A True Story of Deadly Obsession", an account of Myers' alleged crime and ensuing trial.
Dubuc's affidavit, attached to the second state post-conviction petition, see State Rec. Vol. 17,
application, finding the affiant's statement to be based solely upon hearsay and thus inadmissible. Since Dubuc's statement indicated that Bosco may have waived his journalistic privilege by voluntarily disclosing the information to her, however, Judge Cusimano's order referred Myers to LSA-R.S. 45:1453, which provides the procedure to revoke journalistic privilege. Cusimano's order stated:
In the instant case, the record reveals that the reporter in question resides in Orleans parish . . . While the affidavit is insufficient for an evidentiary hearing, defendant Myers may file an action seeking to revoke the reporter's privilege in Orleans parish. If his action is successful in Orleans parish, then the evidence thereby procured may be used as the basis for another post conviction application in this court"
See State Rec. Vol. 7, Trial Court Ruling — 2nd Post Conviction Relief
Petitioner would like to characterize Judge Cusimano's ruling as an mandate from the judge that petitioner file the civil suit to effectively discover credible evidence of the claims being raised in his state post-conviction application. If Myers' was only acting pursuit to Judge Cusimano's mandate, it is argued, then the civil proceeding which Myers filed should be considered a part of the post-conviction proceedings and should justify tolling under 28 U.S.C. § 2244(d)(2).
This court does not accept Myers' interpretation of the language used by Judge Cusimano in his Order as requiring or mandating that Myers' pursue the state civil action. Cusimano's Order was obviously suggestive of an alternative route that Myers' might follow in trying to obtain credible, admissible evidence of his claims. Yet the Order falls far short of a directive, clearly stating that Myer's may file an action seeking to revoke the reporter's privilege and, if successful, may use the obtained evidence as the basis for another state post-conviction application. Such an Order does not make Myers' ancillary civil action akin to a continuation of his collateral attack so as to toll the limitations period.
The court's determination that the ancillary civil action was not a part of the post-conviction or collateral review process which should toll the limitations period under 28 U.S.C. § 2244(d)(2) is bolstered by Louisiana's own definition of post-conviction relief and determination of the type of claims cognizable on post-conviction review. La. C.Cr. P. art. 924 defines an application for post conviction relief as ". . . a petition filed by a person in custody after sentence following conviction for the commission of an offense seeking to have the conviction and sentence set aside." While Myers' ancillary civil action sought evidence relative to the claims he wished to pursue in post-conviction relief, the civil action, even if successful, would still have been insufficient to have the conviction or sentence set aside. Additionally, the issues cognizable on post-conviction review are limited to claims that (1) the conviction was obtained in violation of the constitutions of the United States or Louisiana; (2) the convicting court exceeded its jurisdiction; (3) the conviction or sentence subjected the petitioner to double jeopardy; (4) that the limitations for the institution of prosecution had prescribed; (5) that the statute creating the offense for which the petitioner was convicted and sentenced was unconstitutional; or, (6) that the conviction or sentence resulted from an ex post facto application of law in violation of the constitutions of the United States or Louisiana. See La. C.Cr. P. art. 930.3. Myers' civil action raised none of these issues but instead sought the discovery of evidence, in that regard, Myers' situation is analogous to the petitioners in Brisbon v. Cain , 2000 WL 45872 (E.D. La. 2000) and in Boyd v. Ward , 2001 WL 533221 (E.D. La. 2001).
In Brisbon and in Boyd , the petitioners argued that motions for production of documents, specifically guilty plea transcripts, should toll the limitations period pursuant to 28 U.S.C. § 2244(d)(2). The Brisbon and Boyd courts rejected the petitioners' contentions that because the sought-after documents were necessary to pursue their habeas actions, such motions should qualify as ". . . application[s] for State post-conviction or other collateral review . . .". Finding that the motions for production of documents or transcripts were "preliminary in nature and did not directly call into question the validity of [the petitioners'] convictions or sentences", the courts refused to toll the limitations period for the time when the motions were pending. See Brisbon , 2000 WL 45872 at p. 2; Boyd , 2001 WL 533221 p. 4.
See also, Sorce v. Artuz , 73 F. Supp. 292, 297(E.D.N.Y. 1999) (rejecting prisoner's contention that civil action requests for documents made under the state's Freedom of Information Law should be construed as "state post-conviction or other collateral review with respect to the judgment or claim" within the meaning of the AEDPA's tolling provision.)
Accordingly, this court finds no support in the statute, 28 U.S.C. § 2244(d)(2), in the record, nor in the case law for petitioner's contention that the ancillary civil action should be considered analogous to or a part of the post-conviction process for purposes of tolling the limitations period.
B. The Filing of the Ancillary Civil Action and Equitable Tolling
The question then becomes whether petitioner's limitations period for filing his federal habeas application should be considered equitably tolled as a result of the filing of the Orleans Parish civil action to revoke reporter's privilege. The Fifth Circuit has held that the AEDPA one year limitations period is a statute of limitations, not a bar to federal jurisdiction. Davis v. Johnson , 158 F.3d 806 (5th Cir. 1998), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999). "The doctrine of equitable tolling preserves a plaintiff's claims when strict application of the statute of limitations would be inequitable." Davis , 158 F.3d at 810. Courts must "examine each case on its facts to determine whether it presents sufficiently 'rare and exceptional circumstances' to justify equitable tolling." Fisher v. Johnson , 174 F.3d 710, 713 (5th Cir. 1999), quoting Davis , 158 F.3d 806. "'Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights. A 'garden variety claim of excusable neglect' does not support equitable tolling." Coleman v. Johnson , 184 F.3d 398, 402 (5th Cir. 1999), citing Rashidi v. American President Lines , 96 F.3d 124, 128 (5th Cir. 1996). Moreover, equitable tolling should only be applied if the applicant diligently pursues § 2254 relief. Melancon v. Kaylo , 259 F.3d 401, 408 (5th Cir. 2001); Coleman , 184 F.3d at 403.
On the issue of equitable tolling, petitioner argues that since Judge Cusimano's order made filing the civil action a "condition precedent" to success on post-conviction relief, petitioner should be entitled to equitable tolling for the time the civil action was pending. Petitioner posits that the order from Judge Cusimano puts Myers in a similar situation to the petitioner in U.S. v. Patterson , 211 F.3d 927 (5th Cir. 2000). Petitioner cites the Patterson case for the proposition that "actions taken by petitioners at the direction of the court are not chargeable to the petitioner in determining the timeliness of the filing of the application under AEDPA's tightened time restrictions." Petitioner oversimplifies the rule of Patterson .
Memorandum of Law on the Issue of Timeliness at pp. 6-8.
In Patterson , a federal prisoner successfully moved to have his timely filed § 2255 motion dismissed without prejudice "so that he could find an experience[d] writ-writer" and file his § 2255 motion at a later date. The district court, over the government's objections, found that dismissal without prejudice would be in the "interest of justice". Nearly one year after the dismissal, prisoner filed for an extension of time to file the § 2255 motion, stating that without the 30 day extension of time requested, he would be barred from filing the action by the one year deadline. The district court denied the motion, stating that the movant's statute of limitations to file a motion pursuant to 28 U.S.C. § 2255 would expire on April 30, 1998. Subsequently, in a separate order, the district court dismissed the § 2255 action, filed on May 4, 1998 (but timely tendered to the prison custodian on April 30, 1998), as time-barred, for the first time stating that the deadline for filing the petition was actually April 24, 1997 (pursuant to U.S. v. Flores , 211 F.3d 927, 929 (5th Cir. 1998). The Fifth Circuit found that equitable tolling would apply since the "court has led the plaintiff to believe that [he] had done everything required of [him]." Patterson , 211 F.3d at 931, citing Baldwin County Welcome Center v. Brown , 466 U.S. 147, 104 S.Ct. 1723, 1726, 80 L.Ed.2d 196 (1984).
Federal courts have read cases pertaining to § 2255 and § 2254 actions in pari materia as long as the context does not render it improper. See U.S. v. Flores , 135 F.3d 1000, 1002 n. 7 (5th Cir. 1998), cert. denied, 525 U.S. 1091, 119 S.Ct. 846, 142 L.Ed.2d 700 (1999).
The Government's objection did not raise the claim of time-bar although at the time of the dismissal, the petition was already untimely.
This court finds the Patterson case distinguishable from Myers' case in several ways. First, unlike Myers, who has been represented by counsel in most of his post-conviction proceedings, the petitioner in Patterson filed his § 2255 motion pro se and thus relied heavily upon the district court's express statement of an incorrect deadline for the filing of said motion. Patterson , 211 F.3d at 930. Moreover, the petitioner in Patterson was deceived (though not necessarily intentionally) by the government's apparent acquiescence in the incorrect deadline for the filing of the § 2255 action. Patterson , 211 F.3d at 931 n. 7. Neither the state court nor the respondent herein is similarly responsible for misleading Myers' counsel.
In fact, in Patterson , the Fifth Circuit specifically relied upon the language of Baldwin County Welcome Center v. Brown , 466 U.S. 147, 104 S.Ct. 1723, 1726, 80 L.Ed.2d 196 (1984) and Coleman v. Johnson , 184 F.3d 398, 402 (5th Cir. 1999), cases requiring a showing that the plaintiff was actively misled by the defendant or the court about the cause of action, in order for equitable tolling to apply. Id. at 930-31.
Second, unlike Myers, Patterson actually filed his motion collaterally attacking his conviction in a timely manner. Patterson subsequently sought, however, an extension of time to obtain the assistance of an experienced writ-writer, which was denied. Alternatively, the district court, finding that "it would be in the interests of justice", granted a motion to withdraw the petition without prejudice. Although petitioner argues that he likewise should have been allowed an extension of time or a stay by the state courts to pursue the Bosco evidence, unlike pro se litigant Patterson, petitioner Myers, with counsel, failed to request a stay or an extension from Judge Cusimano so that he could pursue the civil action. As a result, Myers' state post-conviction application ceased to be "pending" as of November 4, 1997, the date that Judge Cusimano denied his application.
This court is also cognizant of the fact that equitable tolling is to be applied sparingly to defeat the one year statute of limitations set forth by Congress in 28 U.S.C. § 2244(d)(1). The Fifth Circuit has warned that while a prisoner may present a court with circumstances beyond those already contemplated by Congress and articulated as exceptions to the one year rule under 28 U.S.C. § 2244(d)(1)(B),(C) and (D), a court should not equitably toll the limitations period unless the circumstances presented in a particular case are on par with the conditions listed in the exceptions provision. See Felder v. Johnson , 204 F.3d 168, 172 (5th Cir. 2000). In this case, Congress has already contemplated the circumstances presented by Myers, where "new evidence" is discovered which triggers a petitioner's knowledge of a potential post-conviction claim.
These provisions list the statutory exceptions for the general rule that the one year limitations period begins running as of the date a prisoner's conviction became final. See 28 U.S.C. § 2244(d)(1)(A). Compare 28 U.S.C. § 2244(d)(1)(B),(C) and (D).
Myers essentially was seeking "new evidence" to support his claims of prosecutorial and judicial misconduct and Brady violations when he filed his civil petition to revoke reporters' privilege.
Under 28 U.S.C. § 2244(d)(1)(D), Congress provided an exception to the rule that the limitations period commences at the finality of the state court conviction. § 2244(d)(1)(D) provides instead that the limitations period commences on the date when the "factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Section 2244(d)(1)(D) provides for equitable tolling when the facts on which a federal habeas claim are based would not have been discovered by a duly diligent petitioner. See, Ybanez v. Johnson , 204 F.3d 645, 646 (5th Cir.), Cert. denied, 531 U.S. 881, 121 S.Ct. 193, 148 L.Ed.2d 134 (2000), citing Fisher v. Johnson , 174 F.3d 710, 715 n. 14(5th Cir.), reh'g denied, 189 F.3d 471 (5th Cir. 1999), cert. denied, ___ U.S. ___, 121 S.Ct. 1124, 148 L.Ed.2d 991 (2001). Under Myers' view of the AEDPA, the factual predicate of his claim would not have been available until he was able, through the successful litigation of his petition to revoke reporter's privilege, to substantiate his habeas claims with admissible evidence. However, Myers' view of what constitutes the factual predicate of his claim has been staunchly rejected by the Fifth Circuit in Flanagan v. Johnson , 154 F.3d 196, 201-02 (5th Cir. 1998).
In Flanagan , the petitioner argued that the one year limitations period should not have begun to run until he was able to obtain the affidavit of his trial counsel to support his claim that he had not been informed of his right not to testify. The Fifth Circuit concluded that the lawyer's affidavit formed no part of the factual predicate of Flanagan's claim as the fact that Flanagan was called to testify and did not know he had the right to refuse, was actually known to Flanagan early on, before the lawyer's affidavit was obtained. The Fifth Circuit explained:
Flanagan is confusing his knowledge of the factual predicate of his claim with the time permitted for gathering evidence in support of his claim . . . Section 2244(d)(1)(D) does not convey a statutory right to an extended delay, in this case more than seven years, while a habeas petitioner gathers every possible scrap of evidence that might, by negative implication, support his claim.
Similarly, in evaluating Myers' "new evidence" claim, this court must focus not on how long it took Myers' to obtain or attempt to obtain the evidence needed to support his claim. Rather, this court must determine when Myers' had knowledge that his claim existed. The State contends that Myers was aware of the new evidence claim, ie., the "Bosco evidence", as early as the filing of Myers' first state post-conviction application. Review of the state court record confirms that the State's statement is accurate. In his first state post-conviction application, filed on October 27, 1994 and initially filed pro se, Myers alleged that Bosco's book, " Blood Will Tell: A True Story of Deadly Obsession", contained "new evidence", specifically evidence involving new witnesses' accounts of the crime and old witnesses' accounts which had changed since trial. Myers also specifically alleged that Bosco had "interviewed numerous individuals and has stated that his audio tapes contain statements that are exculpatory of Kerry Myers." Myers goes on to indicate that ". . . new evidence has come to light which indicates that there were serious instances of prosecutorial and judicial misconduct throughout the trial of this matter . . . [and] other such instances of prosecutorial and judicial misconduct occurred during the appellate process, both during the consideration of supervisory writ applications . . . and during the direct appeal of the conviction of Kerry Myers." Thus, Myers obviously had knowledge of the factual predicate of his claim as early as October 27, 1994 (prior to the time when the AEDPA's limitations period had begun to run) even if he had not yet attempted to gather the evidence in support of his claim. Moreover, it is worth noting that the State filed a response to Myers' first post-conviction application in January of 1995. Therein, the State put Myers on notice that Bosco had claimed privilege and that LSA-R.S. 45:1451, et seq., provided for the procedures governing a reporter's privilege. Considering that Myers was aware of the factual predicate of his claims in October 1994, was first put on notice of the procedures to be followed in attempting to obtain evidence being withheld pursuant to a journalistic privilege in January 1995, was represented by counsel even before a final ruling was issued on his first state application for post-conviction relief, and yet still failed to pursue his civil proceeding until December 10, 1997, when he filed the Petition to Revoke Journalistic Privilege in Orleans Parish, the court does not find that Myers is a worthy recipient of equitable tolling. To hold that Myers' federal limitations' period should be tolled while Myers' attempted, in an dilatory manner, to gather possible evidence to support his habeas claims, "would characterize as 'rare and exceptional' those circumstances that countless other prisoners could claim as their own". Felder , 204 F.3d at 173; Cf. Fisher , 174 F.3d at 715 ("[T]he same concept would apply equally to many other prisoners and in different variations of delayed information, becoming a judicial tolling rule. Such broad decisions are for Congress, not equity.") Accordingly, the court finds that Myers is not entitled to equitable tolling for the period when his ancillary civil proceeding was pending.
Attorney Andrew Kelly testified at the federal evidentiary hearing that he first represented Myers when he appealed on Myers' behalf the trial court's denial of the first state post-conviction application to the Louisiana Supreme Court. See Transcript of Evidentiary Hearing at p. 17.
See State Rec. Vol. 16, 1st Post-conviction Relief — Trial Court at p. 16.
According to the State's response to Myers' first post-conviction application, Bosco's asserted privilege had already been upheld against a earlier challenge brought by co-defendant Fontanille. See State Rec. Vol. 16, State Response to 1st Post-Conviction Relief at p. 5, referencing State v. Fontanille , No. 87-3280 (Nov. 4, 1993); No. 94-KW-870 (La.App. 5 Cir., Sept. 2, 1994).
The court notes that, although Attorney Kelly testified at the federal hearing that he was unaware of the statutory framework for bringing an action to revoke journalistic privilege until Judge Cusimano's ruling on petitioner's second post-conviction application referred to LSA R.S. 45:1453, Kelly would have learned of the statutory provisions had he read the State's response to petitioner's first post-conviction application. Moreover, even for a pro se petitioner, "mere ignorance of the law or lack of knowledge of filing deadlines does not justify equitable tolling or other exceptions to a law's requirements". Felder , 204 F.3d at 172; See also Fisher , 174 F.3d at 714 n. 13. Certainly, the standard for a prisoner represented by experienced counsel would be significantly more stringent.
Although this court's determination that the ancillary civil proceeding does not toll the limitations period itself renders Myers' federal petition untimely, the court will also address Myers' final claim that he should be granted equitable tolling for the time period when he claims his counsel was unaware that the state trial court had acted upon his third post-conviction application. Again, the court notes that this additional argument for tolling is superfluous in that Myers' federal limitations period had expired before the third state application had even been filed. However, should a reviewing court disagree with the undersigned's analysis regarding whether tolling should be allowed for the ancillary civil action, petitioner's final argument for equity would need be addressed. Therefore, for judicial efficiency reasons, this court addresses and also disposes of Myers' final argument in favor of tolling.
See page 7 of this opinion, noting that April 15, 1998 was the expiration date of Myers' one year federal limitations period. The third application for state post-conviction relief was not filed until May 7, 1998.
C. Tolling for the Time When There was No Notice of the State Trial Court's Decision
Myers argued at the evidentiary hearing and in brief, that he was unaware for a period of about eight months that the state trial court had dismissed his third application for post-conviction relief. At the hearing, Attorney Kelly testified that, about a month after filing the third application, having not heard from the court and with some prompting from his client, he went to the Twenty-Fourth Judicial District Court and "in as subtle and quiet way as possible, made inquiries as to whether or not a ruling had been issued or if a ruling would be forthcoming any time soon." Kelly testified that he was told the case was still "pending". Kelly indicated that he was concerned about badgering the judge for a ruling thus he generally made his inquiries, approximately on a monthly basis, either through a minute clerk at the Judge's chambers or through the main clerk's desk at the Twenty-Fourth Judicial District Court Kelly stated that he "was aware that there was some case law indicating that if you didn't get notice of such an opinion, it could be held against you." Kelly further related that he never received service of the trial court's ruling, nor was he informed that the trial court had, in fact, denied Myers' petition on January 25, 1999, until "several months after filing"
The state trial court denied Myers' third application for post-conviction relief on January 25, 1999 and petitioner did not file a writ of mandamus with the state appellate court until September 21, 1999, approximately eight months later.
Transcript of Evidentiary Hearing at p. 13.
Kelly did not name the clerk or clerks to whom he allegedly spoke nor did he present this court with any affidavits, other than his own, to support his account that he was wrongly informed for eight months by the Twenty-Fourth JDC that the Myers' case was still pending. He was able to name the staff attorney, however, who finally informed him of the state trial court's denial. See Affidavit of Andrew Kelly, State Rec. Vol. 19, naming Ann Daufries, as the staff attorney who informed him of the denial. See also Transcript of Evidentiary Hearing at p. 18.
Transcript of Evidentiary Hearing at p. 13.
The service instructions on Judge McCabe's Order denying Myers' third post-conviction application indicate that Myers was served through his counsel, Andrew Kelly. See State rec. Vol. 18, Trial Court Ruling — 3rd Post-Conviction Relief at p. 4.
Transcript of Evidentiary Hearing at pp. 14-15. The court notes that Kelly's affidavit, submitted to the state courts as an exhibit to Myers' Writ of Mandamus filed on or about September 18, 1999, indicates that Kelly learned of McCabe's decision for the first time on August 23rd, 1999. See Attorney Affidavit, State Rec. Vol. 19. See also Kelly testimony at federal evidentiary hearing, Rec. Doe. 26 at. p. 15 and 18.
On cross exam, Attorney Kelly admitted that he had never sent any written correspondence to the Twenty-Fourth Judicial District Court requesting the status of petitioner Myers' case, nor had he ever physically checked the court record himself to determine the status of the case. Kelly conceded that he was never prevented from looking at the computer-generated docket to ascertain for himself whether the post-conviction application had been ruled upon.
Transcript of Evidentiary Hearing at p. 18.
Petitioner, Kerry Myers also testified at the federal hearing regarding the alleged lack of notice of Judge McCabe's decision on the third application for post-conviction relief. Myers testified that he also never received a copy of Judge McCabe's ruling by mail. Myers submitted "Plaintiff's Exhibit 1", showing the mail log of mail received by Kerry Myers at Angola State Prison between September 1998 through August 25, 1999, evidencing that Myers had not received any mail from the Twenty-Fourth Judicial District Court during that time period. Myers reported that, in August, upon learning from Attorney Kelly that a ruling had been issued by Judge McCabe several months prior, he filed two certified letters with the clerk of court for the Twenty-Fourth Judicial District Court requesting an update on his case status. After receiving no response from the court, Myers then sought a writ of mandamus from the state appellate court, requesting that the court order the trial court to rule on petitioner's application. Myers claimed at the federal hearing that he filed a mandamus because he did not believe he could take an appeal of Judge McCabe's nding without having a copy of that ruling. The record reflects that Myers waited nearly a month to file the writ of mandamus with the state appellate court.
Myers did not submit as exhibits the letters he allegedly sent to the state court inquiring about his case status. Additionally, although reference is made to these letters in Myers' Application for Writ of Mandamus as "See Exhibit B, Copies of Letters to 24th JDC", no copies of the referenced letters could be located in the state record. See State Rec. Vol. 19, Appeal Court — Writ of Mandamus.
Transcript of Evidentiary Hearing at p. 47.
See State Rec. Vol. 19, Appeal Court — Writ of Mandamus. According to the Clerk for the Louisiana Fifth Circuit Court of Appeals, the writ of mandamus was received for filing on September 21, 1999. (Writ 99-KH-1049).
"As a discretionary doctrine that turns on the facts and the circumstances of a particular case, equitable tolling does not lend itself to bright-line rules." Fisher v. Johnson , 174 F.3d at 713. The statute of limitations of the AEDPA must not be applied too harshly as "[d]ismissal of a first habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty." Lonchar v. Thomas , 517 U.S. 314, 327, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996). "At the same time, the Supreme Court has expressed deference to the rules that Congress fashioned concerning habeas." Fisher , 174 F.3d at 713. Under the plain terms of the statute, Congress has failed to provide for any tolling based upon a petitioner's lack of or tardy receipt of notice of a state court's actions on his post-conviction proceedings.
See e.g., Fisher , 174 F.3d at 713, finding that Congress knew that the AEDPA would affect incarcerated individuals with limited access to outside information, yet failed to provide any tolling based upon such delay. ("In the face of Congressional silence, we are reticent to create this type of tolling judicially.")
Equitable tolling has been applied in "'two generally distinct kinds of situations. In the first, the plaintiffs were prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant. In the second, extraordinary circumstances beyond plaintiff's control made it impossible to file the claims on time.'" Harris v. Hutchinson , 209 F.3d 325 (4th Cir. 2000), citing Alvarez-Machain v. United States , 107 F.3d 696, 700 (9th Cir. 1996). Petitioner Myers', of course, invokes the second situation as he makes no claim that wrongful conduct on the part of the State of Louisiana prevented him from filing his federal petition on time.
The invocation of equity must be "guarded and infrequent. . . . reserved for those rare instances where — due to circumstances external to the party's own conduct — it would be unconscionable to enforce the limitations period against a party and gross injustice would result." Id. Moreover, the burden of establishing entitlement to equitable tolling falls squarely on the habeas petitioner. Phillips v. Donnellly , 216 F.3d 508, 511(5th Cir.), reh'g granted in part, 223 F.3d 797 (5th Cir. 2000).
The U.S. Fifth Circuit has recognized that, in the case of a pro se prisoner who had continuously pursued his rights with "diligence and alacrity", and who could conclusively establish that he had not received notice of a state court's denial of his post-conviction application for a period of four months, equitable tolling might apply to extend the one year limitations period of the AEDPA. Phillips , 216 F.3d at 511 (remanding the case to the district court for a hearing as to whether Phillips had, in fact, received untimely notice of the state court denial). The Fifth Circuit has not, however, grappled with a case of a habeas petitioner who, represented by counsel, failed to receive notice of a state court's ruling and claimed that his federal habeas petition should be subject to equitable tolling as a result. Nor has the Fifth Circuit faced a situation where equitably tolling of a federal habeas was requested because counsel claimed that he relied, to his client's detriment, on incorrect statements allegedly made by courthouse clerks. The only case which this court found with similar facts and claims for equitable tolling is the case of United States ex rel. Paul Modrowski v. Briley , 2001 WL 855426 (N.D. Ill., July 24, 2001). Although Modrowski is not binding, the court finds the reasoning of the decision to be persuasive.
In Modrowski , the petitioner, represented by counsel, mailed his federal habeas corpus petition to the court in an envelope postmarked May 31, 2001. Modrowski's counsel reported that on that day, May 31, 2001, he contacted the "clerk of court" and was told that the filing date would be the postmark date, and he thus relied upon that statement. The court noted that, "Modrowski's counsel did not identify the person who gave him this assurance; members of the clerk's staff are strictly instructed not to offer legal advice." Refusing to apply the "mailbox rule" of Houston v. Lack , 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) to a represented petitioner, the federal court for the Northern District of Illinois dismissed the federal petition as being one day late under the time limitations of the AEDPA. On the issue of equitable tolling, the Modrowski court noted that equity required that "[e]xtraordinary circumstances far beyond the litigant's control must have prevented timely filing. Attorney's errors or negligence do not meet that standard." Modrowski , 2001 WL 855426, *2. (citations omitted)
An attorney is the client's agent, and his actions — and inactions — are his client's. If it was within the attorney's power to file on time, it is considered within the client's power to have done so.
This is true even where the client's liberty, or even life, may be at stake. In Coleman v. Thompson , 501 U.S. 722 (1991), a capital case, the Supreme Court held that an attorney's failure to file a timely appeal in his client's state post-conviction proceeding barred federal review of the petitioner's claims. In the case of a direct appeal, where the defendant has a constitutional right to effective assistance of counsel, the defendant would not be held responsible for his attorney's dereliction, since the state had the responsibility to ensure that he had competent counsel. But in post-conviction proceedings there is no constitutional right to counsel, so the petitioner, like other litigants, bears the risk that his counsel will bungle. Id., at 753-54.Modrowski , 2001 WL 855426, *2.
Myers may look to distinguish his situation from that of Modrowski by claiming that, unlike Modrowski's counsel who relied upon a misstatement of the law made by a layperson (a clerk's office employee), his attorney relied upon a clerk's office employee's misstatement of fact. However, this distinction was rejected in Modrowski unless the mistaken statement of fact was one that was difficult to verify. Id.
In the case at bar, Myers was represented by experienced counsel at the time relevant to the issue of equitable tolling. Counsel was physically capable of reviewing the docket master for Myers' case himself to verify that the case was pending but failed to do so. Counsel was in the best position to prevent an error which could ultimately affect his client's interest and he was aware of the fact that his client would bear the risk that his petition would be untimely if counsel "bungled." The fact is that counsel waited more than fifteen months without a decision from the state court without contacting the judge or his staff, without personally looking at a docket master, or without sending any written inquiry or correspondence to the court regarding Myers' case. While counsel's performance cannot be held to an infallible standard, it seems reasonable to expect that he would have done more to protect his client's rights. Moreover, similar to the attorney in Modrowski , Myers' counsel did not identify the clerk's office employee to whom he spoke and no other evidence was offered to support his contention. While the court has no reason to doubt the veracity of counsel's testimony, the evidence being offered in support of equitable tolling based upon a clerk's office employee's misstatement is meager indeed.
See Kelly testimony that he was aware of case law indicating his client could be prejudiced if he did not receive notice of the state court's decisions. Transcript of Evidentiary Hearing at p. 13.
Myers' petition was originally filed on May 7, 1998. Kelly thus took no action other than to inquire from clerk's office personnel until he learned of the court's ruling on August 23, 1999.
Additionally, even if counsel's actions in failing to fully investigate the status of the case are deemed understandable or "excusable" in light of his understanding of legal practice in the Twenty-Fourth Judicial District, "excusable neglect" is insufficient to justify equitably tolling. Coleman v. Johnson , 184 F.3d at 402. Although the Fifth Circuit has not spoken on the effect of a lawyer's mistake on the limitations period of the AEDPA, each Circuit that has faced the issue has concluded that attorney error does not constitute the "rare and exceptional circumstances" required for equitable tolling to apply. See, United States v. Marcello , 212 F.3d 1005 (7th Cir.), cert. denied, 531 U.S. 878, 531 S.Ct. 188, 148 L.Ed.2d 130 (2000) (attorney's excusable negligence in late filing does not rise to the level of an extraordinary circumstance for equitable tolling purposes); Kreutzer v. Bowersox , 231 F.3d 460, 463 (8th Cir. 2000), pet. for cert. filed, No. 00-10520 (U.S., June 11, 2001) (counsel's confusion over applicability of AEDPA death penalty provisions insufficient for equitable tolling); Harris v. Hutchinson , 209 F.3d 325, 330-31 (4th Cir. 2000) (lawyer's innocent misrepresentation of AEDPA inadequate to justify equitable tolling); Sandvik v. United States , 177 F.3d 1269 (11th Cir. 1999) (attorney error in filing petition untimely due to use of regular mail no excuse). In sum, while equitable tolling may be appropriate when extraordinary circumstances beyond a pro se prisoner's control make it impossible to file a petition on time, equitable tolling is ". . . less appropriate in a case where the petitioner is represented by counsel." Kreutzer , 231 F.3d at 463.
The court also considers the procedural history of Myers' case and notes that Myer's original conviction was in May of 1990. After his conviction was final in May 1992, Myers waited nearly two and one-half years (October 1994) to file his first post-conviction proceeding in the state courts. While Myers was not necessarily concerned about a statute of limitations at that time as the AEDPA had yet to be enacted, it is still telling that a period of two and one half years lapsed before Myers' made any effort to have his post-conviction claims heard. Additionally, the court recognizes that Myers' claim for equitable tolling is for a time period after the filing and determination of his third post-conviction application, an application filed in 1998 which raised claims Myers knew existed at least as early as 1994. Furthermore, once Myers' counsel claimed to have discovered that the state trial court had ruled on Myers' third application for post-conviction relief almost eight months prior to notification, Myers and his counsel waited nearly another month before filing a writ of mandamus in the state courts. Finally, the court considers that Myers waited nearly another two months after the state court acted upon his last post-conviction writ request before filing the federal habeas petition currently before the court. Given the procedural history noted, this court is reluctant to find that Myers acted with the "diligence and alacrity" which petitioners seeking equitable tolling must display. See Phillips , 216 F.3d at 511.
See discussion of equitable tolling for the filing of the ancillary civil action at pp. 16-19 herein.
Although there was conflicting information provided during the federal hearing as to whether the writ of mandamus was filed by counsel or by Myers pro se, compare Transcript of Evidentiary Hearing pp. 15-16 with p. 19, the record shows that Myers signed the writ of mandamus as a pro se petitioner but attached counsel's affidavit in support of the mandamus request.
RECOMMENDATION
Accordingly, for all the foregoing reasons, it is hereby RECOMMENDED that petitioner, Kerry Myers's application for federal habeas corpus relief be DENIED 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 10 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. Douglass v. United Services Auto. Ass'n , 79 F.3d 1415, 1430 (5th Cir. 1996).