Opinion
Civil Action No. 06-0533, Section P.
June 9, 2006
REPORT AND RECOMMENDATION
Before the court is a petition for writ of habeas corpus filed on March 13, 2006 by pro se petitioner Lawan J. Perro, Sr. Petitioner is an inmate in the custody of Louisiana's Department of Public Safety and Corrections. He is incarcerated at the Allen Corrections Center, in Kinder, Louisiana, where he is serving a twenty year sentence imposed following his December 12, 2000 conviction for First Degree Robbery, entered in the Fifteenth Judicial District Court, for Vermilion Parish, Louisiana.
The petition was signed on March 13, 2006 and filed in this court on March 27, 2006. Accordingly, the undersigned has given petitioner the benefit of the federal "mailbox rule". Houston v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 2382, 101 L.Ed.2d 245 (1988), Spotville v. Cain, 149 F.3d 374, 376 (5th Cir. 1998).
This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the court. For the following reasons it is recommended that the petition be DENIED and DISMISSED WITH PREJUDICE as time barred by the provisions of 28 U.S.C. § 2244(d).
Statement of the Case
Petitioner was originally charged with armed robbery. On December 12, 2000, petitioner plead guilty to the lesser included offense of first degree robbery. Petitioner was sentenced to serve twenty years imprisonment on July 2, 2001.
This information was obtained from the Clerk of the Fifteenth Judicial District Court for Vermilion Parish, Louisiana.
Petitioner did not appeal his conviction and sentence. However, on July 1, 2003, he filed an Application for Post-Conviction Relief in the Fifteenth Judicial District Court. In his Application, petitioner argued two claims for relief: (1) that he received ineffective assistance of counsel; and (2) that his sentence was excessive.
On some unspecified date relief was denied by the trial court. Petitioner's request for review in the Louisiana Third Circuit Court of Appeal was denied on December 12, 2003, and the Louisiana Supreme Court denied writs on May 6, 2005. See State of Louisiana ex rel. Lewan Perro v. State of Louisiana, 2004-1741 (La. 5/6/2005), 901 So.2d 1082.
The instant petition for federal habeas corpus relief was filed on March 13, 2006. Petitioner urges the same claims here that were allegedly raised in state post-conviction proceedings.
Law and Analysis
This petition was filed after the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, this court must apply the provisions of AEDPA, including the timeliness provisions. Villegas v. Johnson, 184 F.3d 467, 468 (5th Cir. 8/9/1999); In Re Smith, 142 F.3d 832, 834, citing Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
Title 28 U.S.C. § 2244(d)(1)(A) was amended by AEDPA to provide a one-year statute of limitations for the filing of applications for writ of habeas corpus by persons in custody pursuant to the judgment of a State court. This limitation period generally runs from ". . . the date on which the 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).
Petitioner alleges no state created impediment which implicated the Constitution or other federal law which prevented the timely filing of the instant petition, nor does he base his petition on any newly recognized retroactively applicable constitutional right, or on claims for which the factual predicate was only recently discovered. See 28 U.S.C. § 2244(d)(1) (B), (C), and (D). Accordingly, these subsections are inapplicable.
The statutory tolling provision set forth in 28 U.S.C. § 2244(d)(2) provides that the time during which a properly filed application for post-conviction relief was pending in state court is not counted toward the limitation period. Ott v. Johnson, 192 F.3d 510, 512 (5th Cir. 1999); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998); 28 U.S.C. § 2244(d)(2). However, any lapse of time before the proper filing of an application for post-conviction relief in state court is counted against the one-year limitation period. Villegas, 184 F.3d at 472 citing Flanagan, 154 F.3d at 199, n. 1; Melançon v. Kaylo, 259 F.3d 401, 404 (5th Cir. 2001); See also Salinas v. Cockrell, 354 F.3d 425 (5th Cir. 2004). A petitioner cannot "revive an expired limitation period by simply filing a state [court] petition. . . ." Villegas, 184 F.3d at 472 citing Flanagan, 154 F.3d at 199, n. 1; Bogan v. Moore, 55 F.Supp.2d 597, 600 (S.D.Miss. 1999); Sorce v. Artuz, 73 F.Supp.2d 292, 294 (E.D.N.Y. 1999); Banford v. Cain, 2000 WL 1808491, *2 (E.D.La. 2000); Williams v. Cain, 2000 WL 863132, *2 (E.D.La. 2000) ; Magee v. Cain, 2000 WL 1023423, *4 (E.D.La. 2000); Anderson v. Cain, 2005 WL 2304484, *2 (W.D.La. 2005); Jones v. Cain, 2005 WL 2304489, *2 (W.D.La. 2005). Federal courts may raise the one-year time limitation sua sponte. Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
Petitioner was convicted on December 12, 2000 and sentenced on July 2, 2001. Petitioner did not appeal his conviction and sentence. Thus, his conviction became final after the delay for seeking direct review in the Louisiana Third Circuit Court of Appeals expired, that is, at the latest, August 2, 2001, thirty days after petitioner was sentenced following his guilty plea. See La.C Cr.P. art. 914; Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000).
At the time of petitioner's conviction, La.C.Cr.P. art. 914(B)(1) provided only a five day period to move for an appeal. However, article 914 was amended by Act No. 949 § 1 of the 2003 Louisiana Legislature to extend the time period to thirty days. Accordingly, the undersigned has given petitioner the benefit of the longer period in the amended rule.
Under 28 U.S.C. § 2244(d)(1), petitioner had one year, or until August 2, 2002, to file for relief in this court. Petitioner cannot rely on the tolling provision of 28 U.S.C. § 2244(d)(2). By his own admission, petitioner did not seek state post-conviction relief until July 1, 2003. However, by that date, the federal limitations period had already expired. Once the limitation period imposed by 28 U.S.C. § 2244(d)(1) expired, it could not be revived by the filing of an application for relief in state court. See Villegas, 184 F.3d 467, citing Flanagan, 154 F.3d at 197; Bogan, 55 F.Supp.2d at 600; Sorce, 73 F.Supp.2d at 294; Banford, 2000 WL 1808491, at *2; Williams, 2000 WL 863132, at *2; Magee, 2000 WL 1023423, at *4; Anderson, 2005 WL 2304484, at *2 Jones, 2005 WL 2304484, at *2. Petitioner's post-conviction proceedings did not restart the limitation period which had already properly commenced, at the latest, on August 2, 2001 and expired on August 2, 2002. Salinas, supra.
Petitioner cannot rely on the doctrine of equitable tolling because his pleadings fail to present any "rare and exceptional circumstances" warranting the application of the doctrine. See Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998); see also Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000), reh'g granted in part, 223 F.3d 797 (5th Cir. 2000); Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000); Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). Petitioner suggests that he is entitled to equitable tolling based upon the differing state and federal limitation periods for filing for collateral relief, namely, that Louisiana law provides a two year period for filing state applications for post-conviction relief, while federal law provides only a one year period to seek federal habeas corpus relief. Petitioner contends that because he filed his state application for post-conviction relief within the two year period set forth in Louisiana Code of Criminal Procedure article 930.8, his federal habeas corpus should be considered timely as well, despite the fact that it was filed after the federal one year limitation period expired. He further suggests that he is entitled to equitable tolling because Louisiana law does not require that notice of the federal limitation period be given, or more specifically, that notice be given that failure to seek state post-conviction relief within one year of conviction may result in forfeiture of the right to seek federal habeas corpus relief. This argument is unavailing. "Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some way extraordinary way from asserting his rights." Felder, 204 F.3d at 171 citing Coleman, v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999). As a consequence, neither "excusable neglect" nor ignorance of the law is sufficient to justify equitable tolling. Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir. 2002); Felder, 204 F.3d at 171 citing Fisher, 174 F.3d at 714. See also Coleman, 184 F.3d at 402. Petitioner's allegations demonstrate that he was not actively mislead by the State about the federal limitation period nor that he was prevented in an extraordinary way by the State from asserting his rights in a timely manner. Rather, Petitioner was simply unaware or ignorant of the applicable federal limitation period. These circumstances, however, do not constitute the "rare and extraordinary circumstance[s] beyond the petitioner's control" as contemplated by the Fifth Circuit. See Fierro, 294 F.3d at 682. Indeed, on this basis, the United States District Court for the Eastern District of Louisiana has rejected substantially the same argument set forth by petitioner herein. Munoz v. Kaylo, 2003 WL 241070 (E.D.La. 2003).
Petitioner additionally suggests that he is entitled to equitable tolling because he is innocent. However, even actual innocence, in and of itself, is not such an extraordinary circumstance so as to justify the application of equitable tolling. Rather, claims of factual innocence are relevant to the issue of timeliness if they justify tolling of the limitation period. They do not here, since while Petitioner claims actual innocence, he has made no showing of actual innocence. Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002); Felder v. Johnson, 204 F.3d 168, 171 and n. 8 (5th Cir. 2000).
Petitioner pled guilty in the State trial court.
Finally, in order for equitable tolling to apply, the applicant must diligently pursue his claim for § 2254 relief. Coleman, 184 F.3d at 403. In this case, petitioner did not even attempt to collaterally challenge his conviction in the Louisiana state courts until after the federal one-year limitation period had expired. Moreover, petitioner allowed another ten months to lapse after the Louisiana Supreme Court denied his post-conviction writ application before attempting to proceed in this court. As the Fifth Circuit has noted, "equity is not intended for those who sleep on their rights." Id. citing Fisher v. Johnson, 174 F.3d 710 (5th Cir. 1999). Petitioner should have investigated potential claims and the factual basis for those claims in a timely manner, and then pursued those claims diligently in both the state courts and this court.
In accordance with the foregoing analysis, the undersigned finds that petitioner's claims are barred by the one-year limitation period codified at 28 U.S.C. § 2244(d). IT IS RECOMMENDED that this petition for federal habeas corpus relief should be DENIED AND DISMISSED WITH PREJUDICE because petitioner's claims are barred by the one-year limitation period codified at 28 U.S.C. § 2244(d).
Under the provisions of 28 U.S.C. Section 636(b)(1)(C) and Rule 72(b), parties aggrieved by this recommendation have ten (10) business days from service of this report and recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within ten (10) days after being served with a copy of any objections or response to the District judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within ten (10) days following the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See, Douglass v. United Services Automobile Association , 79 F.3d 1415 (5th Cir. 1996).