Opinion
Civil Action No. 02-0943 Section: "I"
June 14, 2002
ORDER AND REASONS
Petitioner, Louis Stokes a/k/a John L. Henry, filed this application for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Upon review of the record and the law, the Court has determined that the record is sufficient, that no evidentiary hearing is required, and that petitioner is not entitled to relief because his federal application is untimely.
Pursuant to 28 U.S.C. § 2254(e)(2), whether to hold an evidentiary hearing is now a statutorily mandated determination. According to Section 2254(e)(2), the district court may hold an evidentiary hearing only when the petitioner has shown that either the claim relies on a new, retroactive rule of constitutional law that was previously unavailable ( 28 U.S.C. § 2254(e)(2)(A)(i)) or the claim relies on a factual basis that could not have been previously discovered through the exercise of due diligence ( 28 U.S.C. § 2254(e)(2)(A)(ii)); and the facts underlying the claim show by clear and convincing evidence that, but for the constitutional error, no reasonable jury would have convicted the petitioner ( 28 U.S.C. § 2254(e)(2)(B)).
Petitioner is a state court prisoner incarcerated at the Avoyelles Correctional Center. Cottonport, Louisiana. On November 19, 1996, petitioner pled guilty to simple burglary in violation of La.Rev.Stat.Ann. § 14:62 (West 1996). On that same date, petitioner also pled guilty to a multiple bill of information charging him as a third offender and he was sentenced to a term of eight years imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence, with credit for time served. Because petitioner did not file a direct appeal within the five days allowed by state law, his conviction became final no later than November 26, 1996.
State Rec., Vol. I of III. November 19. 1996, transcript. pp. 5-6: State Rec., Vol. I of III, November 19, 1996, minute entry.
State Rec., Vol. I of III, November 19, 1996, transcript. pp. 12-14: State Rec., Vol. I of III, November 19, 1996, minute entry.
See State v. Counterman, 475 So.2d 336. 338 (La. 1985) (conviction and sentence are final upon the failure of the defendant to make a timely motion for appeal). Pursuant to Louisiana law, a defendant has five days. not including legal holidays and half-holidays, to notice his intent to appeal his conviction or sentence. La.C.Cr.P. arts. 13 and 914 (West 1996). In Louisiana, all Sundays are legal holidays and (except in Washington Parish under certain circumstances) all Saturdays are, depending on the locality, either holidays or half-holidays. La.Rev.Stat.Ann. § 1:55(A) (West 1996). In 1996, November 23 was a Saturday and November 24 was a Sunday; therefore, out of an abundance of caution, this Court will not count those two days against petitioner when calculating the date his conviction became final.
The Court also notes that, subject to certain exceptions, a guilty plea normally results in a waiver of a defendant's right to appeal non-jurisdictional defects in the proceedings prior to the plea. See State v. Crosby, 338 So.2d 584 (La. 1976). In this case, however, the Court need not decide whether petitioner had a right to appeal his conviction pursuant to La.C.Cr.P. art. 914 (West 1996), in that petitioner's application for federal habeas corpus relief is untimely regardless of whether his conviction was final upon the expiration of the time within which to notice an intent to appeal (November 26, 1996) or upon petitioner's plea (November 19, 1996).
On July 16, 1997, petitioner wrote a letter to the state district court stating that he had unsuccessfully attempted to obtain a copy of his master prison record. On April 14, 1998, the state district court informed petitioner that he could secure a copy of the requested document by writing to the facility in which he was incarcerated.
State Rec., Vol. I of III.
State Rec., Vol. I of III, April 14, 1998, minute entry.
On January 20, 1998, petitioner filed with the state district court a motion to obtain copies of his Boykin examination, guilty plea, and sentencing hearing transcript. When the court failed to rule on that motion. petitioner filed another motion with the state district court seeking the same documents on May 5, 1998. Because the court also failed to act on the second motion. petitioner filed a writ application with the Louisiana Fourth Circuit Court of Appeal. On July 30, 1998, that court ordered the state district court to provide petitioner with a copy of his Boykin transcript, but ruled that he was not entitled to a copy of the sentencing transcript.
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709,23 L.Ed.2d 274 (1969).
State Rec., Vol. I of III.
State Rec., Vol. I of III.
The state has been unable to locate and provide this Court with a copy of that application. Rec. Doc. 6. p. 2 n. 1.
In re John Henry, a/k/a Louis Stokes, No. 98-K-1186 (La.App. 4th Cir. July 30, 1998) (unpublished); State Rec., Vol. II of III. When the state district court failed to comply with that order, the appellate court issued another order to the same effect on December 3, 1998. In re John Henry, a/k/a Louis Stokes, No. 98-K-2476 (La.App. 4th Cir. Dec. 3, 1998) (unpublished); State Rec., Vol. II of III. The state district court then provided petitioner with the requested Boykin transcript. In re John Henry, a/k/a Louis Stokes, No. 99-K-0137 (La.App. 4th Cir. April 8, 1999) (unpublished); State Rec., Vol. II of III.
On April 22, 1999, petitioner filed with the Louisiana Fourth Circuit Court of, Appeal an application for post-conviction relief which was denied on June 2, 1999. The state record does not indicate that the post-conviction application was first filed with the state district court.
State Rec., Vol. II of III.
In re John Henry, a/k/a Louis Stokes, No. 99-K-0993 (La.App. 4th Cir. June 2, 1999) (unpublished); State Rec., Vol. II of III. Through independent investigation, this Court has confirmed that petitioner did not file with the Louisiana Supreme Court a writ application regarding that denial.
Petitioner alleges that on or about July 2, 1999, he filed with the state district court a "Motion to Dismiss Multiple Offender Bill." Because the state district court did not rule on the motion. petitioner filed with the Louisiana Fourth Circuit Court of Appeal a petition for a writ of mandamus which was denied on September 22, 1999.
State Rec., Vol. I of III. The state record does not reflect when or if that motion was actually filed with the state district court; however, petitioner signed the document on July 2, 1999.
State Rec., Vol. II of III.
In re John Henry, a/k/a Louis Stokes, No. 99-K-2113 (La.App. 4th Cir. Sept. 22. 1999) (unpublished); State Rec., Vol. II of III.
On March 27, 2000, petitioner filed with the Louisiana Fourth Circuit Court of Appeal a "Petition for Writ of Prohibition, Certarior [sic] and Mandamus" which was denied on May 2, 2000.
State Rec., Vol. II of III.
In re John Henry, a/k/a Louis Stokes, No. 2000-K-0731 (La.App. 4th Cir. May 2, 2000) (unpublished); State Rec., Vol. II of III. The state record does not contain a prior related filing in the state district court.
Petitioner alleges that on or about February 20, 2001, he filed with the state district court a "Motion to Correct an Illegal Multiple Offender's Sentence." The state district court did not rule on the motion. On March 29, 2001, petitioner filed with the Louisiana Fourth Circuit Court of Appeal an application for a supervisory writ of review which was denied on April 30, 2001. Petitioner then filed with the Louisiana Supreme Court an application for a supervisory writ of review which was denied on February 22, 2002.
State Rec., Vol. II of III. The state record does not reflect when or if that motion was actually filed with the state district court; however, in a subsequent writ application, petitioner alleged the motion was filed on or about February 20, 2001.
State Rec., Vol. II of III.
In re John Henry, a/k/a Louis Stokes, No. 2001-K-0624 (La.App. 4th Cir. April 30, 2001) (unpublished); State Rec., Vol. II of III.
State Rec., Vol. III of III.
State ex rel. Stokes v. State, 810 So.2d 1147 (La. 2002); State Rec., Vol. III of III.
On March 5, 2002, petitioner filed an application for federal habeas corpus relief. In support of his federal application, petitioner claims that the trial court erred in finding petitioner to be a third offender. On page 12 of the memorandum in support of petitioner's application for federal habeas corpus relief, petitioner also alleges ineffective assistance of counsel, arguing that counsel did not adequately investigate petitioner's prior criminal history.
Rec. Doc. 1. Petitioner signed his application for federal habeas corpus relief on March 5, 2002. That date represents the earliest date that petitioner could have presented his application to prison officials for mailing and, therefore, the earliest date that this Court could deem his habeas petition to have been filed for statute of limitations purposes. See Cooper v. Brookshire, 70 F.3d 377, 379-80 (5th Cir. 1995) (citing Houston v. Lack, 487 U.S. 266. 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988)).
The Court questions whether petitioner asserts ineffective assistance of counsel as a claim in this proceeding. Petitioner does not list the ineffective assistance of counsel claim as a separate ground for relief in his federal habeas corpus application.
The state argues that petitioner's federal application is untimely. Generally speaking, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires that a petitioner bring his Section 2254 claims within one (1) year of the date on which his conviction or sentence became final. The AEDPA's one-year statute of limitations is tolled for the period of time during which a properly filed application for state post-conviction relief or other collateral review attacking a conviction or sentence is pending in state court. See Fields v. Johnson, 159 F.3d 914 (5th Cir. 1998); 28 U.S.C. § 2244(d)(2). "`[A] properly filed application' is one submitted according to the state's procedural requirements, such as the rules governing notice and the time and place of filing." Villegas v. Johnson, 184 F.3d 467, 469 (5th Cir. 1999) (quoting Lovasz v. Vaughn, 134 F.3d 146, 148 (3rd Cir. 1998)); Williams v. Cain, 217 F.3d 303 (5th Cir. 2000).
Rec. Doc. 6, pp. 5-6. The state also raises additional defenses. Because the Court agrees that petitioner's federal application is untimely, the remaining defenses need not be considered.
28 U.S.C. § 2244(d) provides:
(1) 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 is 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.
As noted, petitioner's conviction became final no later than November 26, 1996. From November 26, 1996, to November 26, 1997, petitioner had no state court applications for post-conviction or other collateral relief pending which tolled the AEDPA's one-year statute of limitations. In the absence of such state applications, petitioner should have filed his application for federal habeas corpus on or before November 26, 1997. Petitioner's federal habeas corpus application was not filed until March 5, 2002, and it was, therefore, untimely filed.
See note 4, supra.
Although petitioner wrote a letter to the state district court on July 16, 1997, regarding his unsuccessful efforts to obtain a copy of his master prison record, that letter had no bearing on the running of the statute of limitations. The letter in no way challenged petitioner's conviction or sentence; rather, it simply sought the court's assistance in securing the document from penal authorities. Because the letter was preliminary in nature and did not directly call into question the validity of petitioner's conviction or sentence, it cannot fairly be considered an application for state post-conviction relief or other collateral review for tolling purposes. See Boyd v. Ward, 2001 WL 533221, at *4 (E.D. La. May 15, 2001).
The Court further notes that petitioner filed numerous other documents in state court after November 26, 1997. However, even if some of those filings could be considered applications for state post-conviction relief or other collateral review, they would have no bearing on the timeliness of petitioner's federal application. See Magee v. Cain, 2000 WL 1023423, at *4 (E.D. La. July 24, 2000) ("A proper application for state post-conviction relief . . . filed after the expiration of the AEDPA's one-year grace period cannot convert [a petitioner's] federal writ of habeas corpus into a timely filed petition".), aff'd, 253 F.3d 702 (5th Cir. 2001); Williams v. Cain, 2000 WL 863132, at *2 (E.D. La. June 27, 2000).
The Fifth Circuit has held that the AEDPA's one-year statute of limitations can, in rare and exceptional circumstances, be equitably tolled. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). However, "[e]quitable 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." Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (quotation marks omitted). This Court knows of no reason which would support equitable tolling of the statute of limitations.
Accordingly, petitioner's application for federal habeas corpus relief is DENIED.