Opinion
CIVIL ACTION NO. 03-1237, SECTION: "C" (6)
February 6, 2004
ORDER AND REASONS
Before this Court is a petition for habeas corpus relief by Dewing Hickerson ("Petitioner"), pursuant to 28 U.S.C. § 2254. As grounds for relief, the petitioner claims that the trial court erred in sentencing him as a multiple offender, thereby imposing a constitutionally infirm sentence.
Upon review of the record, the Court has determined that Petitioner's federal petition is not timely under the statute of limitations imposed by 28 U.S.C. § 2254(d). Moreover, and irrespective of that time bar, a thorough review of the record indicates that Petitioner's claim is without merit. For the reasons set forth below, this petition is DENIED.
Petitioner, Dewing Hickerson, is a state court prisoner incarcerated at the Avoyelles Correctional Center, Cottonport, Louisiana. On March 17, 1999, Petitioner pled guilty to the charge of burglary of a residence, in violation of La.R.S. § 14:62. That same day, Petitioner was sentenced to twelve years without the Benefit of probation, parol or suspension of sentence. Also on March 17, 1999. Petitioner pled guilty to the state's multiple offender bill, which charged him as a second offender. The Court then revoked the initial sentence and imposed a sentence of eighteen years imprisonment at hard labor without the benefit of probation, parole or suspension of sentence. Petitioner filed no direct appeal in this action.
State Rec. Vol. I of IV, minute entry dated March 17, 1999; State Rec., Vol. I of IV, transcript ofBoykin hearing and sentencing, March 17, 1999, pp. 1-7.
State Rec., Vol. I of IV, minute entry dated March 17, 1999; State Rec., Vol. I of IV, transcript of Boykin hearing and sentencing, March 17, 1999, pp. 6-7.
State Rec., Vol. 1 of IV, minute entry dated March 17, 1999; State Rec., Vol. I of IV, transcript of Boykin hearing and sentencing, March 17, 1999, pp. 7-12.
State Rec., Vol. I of IV, minute entry dated March 17, 1999; State Rec., Vol. I of IV, transcript of Boykin hearing and sentencing, March 17, 1999, pp. 10-12.
On June 25, 1999, Petitioner filed a pro se motion with the Louisiana Twenty-Fourth Judicial District to produce the transcript of his Boykin hearing and sentencing on March 17, 1999. Having received no response to his June 25, 1999 motion, Petitioner filed an application for a writ of mandamus with the Louisiana Fifth Circuit Court of Appeals on September 21, 1999. Petitioner apparently then filed a subsequent Motion For Copies of Verbatim Transcript of Boykin Examination, Guilty Plea, And Sentencing Hearing with the trial court on October 11, 1999, which motion was granted by court order to the clerk of court on October 27, 1999. On May 2, 2000, apparently due to a lack of compliance with the trial court's October 27, 1999 Order, Petitioner filed with the trial court a motion to enforce that Order and again directed the clerk of court to produce and deliver a copy of Petitioner's hearing transcripts to Petitioner. He followed that Motion with an application for a writ of mandamus to the Louisiana Fifth Circuit Court of Appeal seeking an order directing compliance with the trial court's October 27, 1999 Order. On August 22, 2000, the trial court issued a second order directing the delivery to Petitioner of his Boykin transcript, and six days later, the appellate court directed the trial court to comply with its October 27, 1999 order. Petitioner filed a third application with the Louisiana Fifth Circuit Court of Appeals on October 25, 2000, again seeking a writ of mandamus directing the delivery of his Boykin transcript. The state court clerk delivered Petitioner's Boykin and sentencing transcripts by certified mail on November 21, 2000, and Petitioner's third writ application was denied as moot on November 28, 2000.
See State Rec., Vol. IV of IV, State v. Hickerson, 99-KH-1212, Writ Application dated September 21, 1999.
State Rec., Vol. IV of IV, State v. Hickerson, 99-KH-1212, Writ Application dated September 21. 1999. Louisiana's Fifth Circuit Court of Appeal denied this application as moot on November 18, 1999 because trial court had granted Petitioner's motion on October 27, 1999. State Rec., Vol. IV of IV, State v. Hickerson, 99-KH-1212.
See State Rec., Vol. II of IV, Order of October 27, 1999.
State Rec., Vol. II of IV, Motion to Enforce Court Order And/Or Impose Sanction, signed May 2, 2000.
State Rec., Vol. IV of IV, State v. Dickerson, 00-KH-1435, Motion to Enforce Writ of Mandamus.
State Rec., Vol. II of IV, Order by Twenty-Fourth Judicial District Court granting Petitioner's motion of May 2, 2000; State Rec., Vol. IV of IV, State v. Hickerson, 00-KH-1435, Order.
State Rec., Vol. IV of IV, State v. Hickerson, 00-KH-1735, Application For Supervisory Writ.
State Rec., Vol. I of IV, Transmittal Letter dated November 21, 2000.
State Rec., Vol. IV of IV, State v. Hickerson, 00-KH-1735, Denial as Moot of Writ Application.
On December 29, 2000, Petitioner filed a Motion to Correct an Illegal Sentence and an Application for Post Conviction relief with Louisiana's Twenty Fourth Judicial District Court. That court denied Petitioner's Motion to Correct an Illegal Sentence and denied Petitioner's application for post-conviction relief, finding Petitioner's claims to be without merit.
State Rec., Vol. I of IV, While there is some dispute surrounding when Petitioner filed these items with the trial court, each was signed by Petitioner and notarized December 29, 2000. That date represents the earliest date that Petitioner could have presented it to prison officials for mailing and, therefore, the earliest date this Court could deem his application to have been filed for statute of limitations purposes. See Roberts v. Cockrell, 319 F.3d 690, 691 n. 2 (5th Cir. 2003) (holding in absence of other evidence, that federal application is "filed" when delivered to prison authorities for determining filing date). Petitioner also filed an application for extension of time in which to file his application for post-conviction relief. State Rec., Vol. I of IV, Motion and Order for Extension of Time to File Post Conviction Relief, December 29, 2000. Because his post conviction relief application was timely, the trial court denied that motion as moot. State Rec., Vol. I of II, Order of the Twenty Fourth District Court dated March 8, 2001.
State Rec., I of IV, March 8, 2001 Order denying Petitioner's "Motion to Correct an Illegal Sentence Filed Unstamped But Received in the Law Library on January 21, 2001."
Stale Rec. Vol. 1 of IV, March 8, 2001 Order denying Petitioner's "Motion And Order for Extension of Time to File Post Conviction Relief Application Filed Unstamped But Received in the Law Library on January 21, 2001 and Application for Post Conviction Relief Filed February 9, 2001."
Subsequent to the trial court's denial of post-conviction relief and relief from an illegal sentence. Petitioner sought a writ of mandamus seeking a response to his application for post-conviction relief and a writ of mandamus seeking a response to his motion to correct an illegal sentence. each of which was denied as moot by the Louisiana Fifth Circuit Court of Appeal on March 28, 2001. Petitioner then filed a motion to set a return date for supervisory writs on April 5. 2001 which motion was denied as untimely by the Twenty Fourth Judicial District Court on April 23, 2001 Petitioner also sought a writ of mandamus with the Twenty Fourth Judicial District Court on June 14, 2001, which was denied as moot by the trial court on June 26, 2001. In the interim period between his June 4, 2001 writ application and the trial court's denial, Petitioner filed with the Louisiana Fifth Circuit Court of Appeal an application for a writ of mandamus, which was denied by that court as moot on June 28, 2001, Petitioner ultimately petitioned for a supervisory writ from the Louisiana Supreme Court on July 24, 2001, which was denied on May 10, 2002. On March 22, 2003, Petitioner filed this federal application for habeas corpus.
State Rec., Doc. Vol. IV of IV, Petition for Writ of Mandamus (re: Application for Post-Conviction Relief), 01-KH-0338, filed March 8, 2001. While the State indicates the Petition was not post-marked until March 18, 2001, the record contains no documentation of that date. Petitioner signed his application on March 8, 2001. That date represents the earliest date that Petitioner could have presented it to prison officials for mailing and, therefore, the earliest date this Court could deem it to have been filed for statute of limitations purposes. See Roberts, 319 F.3d at 691 n. 2.
State Rec., Doc. Vol. IV of IV, Petition for Writ of Mandamus (re: Motion to Correct Illegal Sentence), 01-KH-0339, filed March 8, 2001. That date represents the earliest date that Petitioner could have presented it to prison officials for mailing and, therefore, the earliest date this Court could deem it to have been filed for statute of limitations purposes. See Roberts, 319 F.3d at 691 n. 2.
J State Rec., Vol. IV of IV, In re Hickerson, 01-KH-0338, Denial of Writ (March 28, 2001); State Rec., Vol. IV of IV, In re Hickerson, 01-KH-0339, Denial of Writ (March 28, 2001).
See State Rec., Vol. I of IV, Order denying writ, dated June 26, 2001.
See State Rec., Vol. I of IV, Order denying writ, dated June 26, 2001.
See State Rec., Vol. I of IV, Order denying writ, dated June 26, 2001.
State Rec., Vol. IV of IV, State v. Hickerson, 01-KH-0704, Writ Application signed June 19, 2001.
State Rec., Vol. IV of IV, State v. Hickerson, 01-KH-0704, Denial of Writ.
See State Rec., Vol. I of IV, Transmittal Letter from Louisiana Supreme Court confirming receipt of filing, Hickerson v. State, 2001-KH-2279, dated August 3, 2001.
See State Rec., Vol. II of IV, State ex rel. Hickerson, 2001-KH-2279, 815 So.2d 836 (La. 2002) (denying writ to review Louisiana Fifth Circuit Court of Appeal decision, 01-KH-0704).
Fed. Rec., Doc. 2.
Timeliness
The state argues that Petitioner's application is not timely. Based upon a review of the record, the Court agrees. 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 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) (internal quotations omitted); Williams v. Cain, 217 F.3d 313 (5th Cir. 2000).Pursuant to 28 U.S.C. § 2244(d)(1)(A), Petitioner's one-year limitation period for seeking federal habeas corpus relief commenced running from the date on which that judgment "became final by the conclusion of direct review or the expiration of the time for seeking such review." Because petitioner did not file a direct appeal within the five days following his plea of guilty and sentencing allowed by state law, his conviction and sentence became final no later than March 24, 1999. Accordingly, the one-year period began to run on March 24, 1999. See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003): Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999): Chester v. Cain, Civ. Action No. 01-1958, 2001 WL 123 1660, at *3-4 (E.D. La. Oct. 15, 2001).
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. 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). In 1999, March 17 was a Wednesday, whereby a full weekend, March 20 and 21, interceded Petitioner's five days to notice his appeal; 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, 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 (March 24, 1999) or upon petitioner's plea (March 17, 1999).
Six hundred forty six (646) days, or two hundred eighty one (281) days in excess of the one-year statute of limitations period, passed prior to Petitioner's first filing — his Application for Post Conviction Relief dated December 29, 2000 — which clearly would have tolled the running of the period, if any time of that limitations period remained. However, at the time of his filing, the statute of limitations period had completely run and no days remained to toll. Therefore, the Petition filed with this Court is time-barred.
The Court notes that, while the state indicates that that application was filed February 9, 2001, Petitioner signed the application on December 29, 2000. Because it is impossible to glean from the record why a forty two (42) day gap between signing and receipt of the application by the trial court exists, and in an abundance of caution, the Court shall employ the earlier date in determining timeliness. That date represents the earliest date that Petitioner could have presented his application for post-conviction relief and his Motion to Correct an Illegal Sentence to prison officials for mailing and, therefore, the earliest date this Court could consider those petitions as filed for statute of limitations purposes. See Roberts, 319 F.3d 691 n. 2.
Moreover, and though Petitioner has not forwarded this argument, the failure of the state court to provide transcripts of his Boykin and Sentencing transcripts is not cause to toll the AEDPA statute of limitations under its equitable tolling provisions. The United States Court of Appeals for the Fifth Circuit has joined other federal circuit courts of appeals in holding that the one-year limitation period of the AEDPA is a statute of limitations, not a jurisdictional bar, and, as such, is subject to equitable tolling. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526U.S. 1074, 119S.Ct. 1474, 143 L.Ed.2d 558 (1999). This doctrine of equitable tolling enables the preservation of a plaintiff's claim where strict application of the statute of limitations would prove inequitable. Davis, 158 F.3d at 810. The doctrine "applies principally where the plaintiff is actively misled by the defendant about the cause of the action or is prevented in some extraordinary way from asserting his rights." United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (citations and internal quotations omitted). "Equitable tolling, however, is permissible only under 'rare and exceptional' circumstances." Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000) (quoting Davis, 158 F.3d at 811). A district court "must be cautious not to apply the statute of limitations too harshly" because dismissal of a first habeas corpus petition is a serious matter. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). The Court, therefore, "must examine each case on its facts to determine whether it presents sufficiently 'rare and exceptional circumstances' to justify equitable tolling." Fisher, 174 F.3d at 713 (quoting Davis, 158 F.3d at 811).
It is insufficient to suggest that this approximately twenty one (21) month lapse between finality of his conviction and the filing of his application for state post-conviction relief should be equitably tolled because he was apparently waiting for and actively seeking production by the State of his Boykin hearing and sentencing transcripts. A state court's delay in furnishing the Petitioner with a transcript does not establish a basis for equitable tolling. See Gassler v. Bruton, 255 F.3d 492, 495 (8th Cir. 2001) (rejecting equitable tolling argument based on alleged delay in receipt of a transcript); Brown v. Cain, 112 F. Supp.2d 585, 587 (E.D. La. 2000) (holding transcript unnecessary to prepare habeas petition); Fadayiro v. United States, 30 F. Supp.2d 772, 779-80 (D.N.J. 1998) (holding delay in receiving transcripts not sufficiently extraordinary to justify application of equitable tolling);United States v. Van Poyck, 980 F. Supp. 1108, 1110-11 (C.D.Cal. 1997) (holding delay in receipt of transcript not an "extraordinary circumstance" sufficient to justify equitable tolling).
Petitioner's legal arguments, while related to his sentencing andBoykin hearing, were essentially legal arguments that Petitioner could have lodged without those transcripts. Moreover Petitioner was present at his guilty plea and resultant sentencing, thus, his legal arguments should have been apparent to him without possession of the transcripts. Without a showing that Petitioner specifically required the transcripts to file his state application, the Court cannot deem this apparent delay in processing his request for transcripts to have been an impediment to filing his post conviction relief application. Outside the sixty nine (69) days between the filing of his application for post-conviction relief and the trial court's denial of that application, there are 1,390 days between the date Petitioner's conviction became final and the date on which he signed the petition filed in this Court. That is almost four times the allowable time under AEDPA's limitations period. The Court therefore will not apply the extraordinary remedy of equitable tolling in this case because there has been no showing of any state interference with Petitioner's rights to timely proceed with the many remedies available to him in the state and federal courts.
A Louisiana State defendant does not have an automatic right to demand transcripts free of charge from the State. See State ex rel. Bernard v. Criminal District Court Section "J", 653 So.2d 1174. 1175 (La. 1995); State v. Anderson, 714 So.2d 766. 769 (La.Ct.App. 3d Cir. 1998), writ denied, 726 So.2d 25 (La. 1998). Rather a defendant must demonstrate a particularized need for the transcripts. See Bernard, 653 So.2d at 1175; Anderson, 714 So.2d at 769. Because an inmate does not have an automatic right to free transcripts, the Louisiana State Courts accept post-conviction relief applications without transcripts attached.
However, in an abundance of caution, the Court has carefully reviewed the record and the timing of the innumerable filings and writ applications made by Petitioner. While the Court finds that the petition for writ of habeas corpus is not timely and is not eligible for equitable tolling, even if the Court were to give the most liberal construction to the issue of timeliness in this case and equitably toll all periods during which Petitioner had any filing pending before the state courts — that is. between March 24, 1999 (finality) and June 25, 1999 (the date of Petitioner's first motion to produce his Boykin transcript), or ninety three (93) days; between November 21, 2000 (the date of delivery of Petitioner's Boykin transcript) and December 29, 2000 (the date on which Petitioner signed his application for post-conviction relief), or thirty eight (38) days; and between May 10, 2002 (the date of the Supreme Court's denial of Petitioner's writ application) and March 22, 2003 (the date Petitioner signed the petition filed in this Court), or three hundred sixteen (3 16) days — his petition remains untimely. In that instance, Petitioner's non-tolled days would total 447 days, eighty two (82) days in excess of the one-year limitations period mandated by AEDPA.
For the reasons stated above, the Court finds that Mr. Hickerson's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 is not timely. Nonetheless, and because of the close scrutiny under which a federal habeas court, applying AEDPA, is required to review the record for purposes of timeliness and other procedural matters, the Court has reviewed Petitioner's claim and determined that it is without merit.
Petitioner asserts that his multiple offender proceeding was defective where the state failed to prove that his guilty plea to the predicate offense was entered knowingly and voluntarily after a full advisement of his rights and the ramifications of the plea. Petitioner has presented no evidence showing that he was not fully advised of his rights and the ramifications of his plea of guilty to the predicate crime. nor its effect on his plea of guilty in the crime for which this habeas petition revolves. In fact, the record is clear that the Court carefully reviewed, not just the rights Petitioner was waiving in pleading guilty, but the enhanced sentence he would face by virtue of his predicate offense. In fact, this interchange occurred twice, first when Petitioner pled guilty to the immediate crime and later when he pled guilty as a multiple offender. Therefore, Petitioner has not demonstrated that the enhanced sentencing as a multiple offender was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.
State Rec., Vol. I of IV, Transcript, March 17, 1999.
CONCLUSION
For purposes of the limited review that can be taken by this Court, and having considered the complaint, the record, and the applicable law, it is determined that Petitioner has not established that his state trial and conviction present grounds for the relief requested. Accordingly,IT IS ORDERED, ADJUDGED AND DECREED that the petition of DEWING H1CKERSON for writ of habeas corpus under 28 U.S.C. § 2254 be DISMISSED WITH PREJUDICE.
Judgement will be entered accordingly.