Opinion
CIVIL ACTION NO. 01-1168 SECTION "H"
October 15, 2001
ORDER AND REASONS
Charles Lamison's pro se petition for post-conviction relief pursuant to 28 U.S.C. § 2254 was considered on memoranda. Upon review of the entire record, including the state court record, it is clear that a federal evidentiary hearing is not necessary and that the petition should be dismissed.
Petitioner is a state prisoner who is serving a sentence of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence, having been convicted of simple burglary on October 21, 1993, and thereafter adjudicated to be a fourth felony offender pursuant to La. Rev. Stat. 15:529.1. The state court of appeals affirmed the conviction and sentence on direct appeal. State v. Lamison, No. 94-1639, 646 So.2d 1262 (La.App. 4th Cir. 11/17/94). The Louisiana Supreme Court denied petitioner's application for writs. State v. Lamison, 652 So.2d 1344 (La. 1995). A November 10, 1981 conviction for attempted armed robbery (La. Rev. Stat. 14:27 (64)) served as one of the underlying offenses for Lamison's adjudication as a fourth felony offender.
See State v. Lamison, 692 So.2d 1057 (La. 1997), State v. Lamison, 694 So.2d 984 (La.App. 4th Cir. 1997).
In this motion for federal habeas corpus relief petitioner seeks to vacate the November 10, 1981 conviction even though he is no longer serving the sentence imposed in connection with that conviction.
"The first showing a § 2254 petitioner must make is that he is "in custody pursuant to the judgment of a State court."' Lackawanna County District Attorney v. Cross, 532 U.S. 394, ___ 121 S.Ct. 1567, 1572, 149 L.Ed.2d 608 (2001), citing 28 U.S.C. § 2254 (a). Petitioner is not "in custody" for the 1981 conviction; Lamison concedes that he has completed his sentence for that conviction. However construing Lamison's pro se petition liberally, as I am required to do, I construe the petition as challenging Lamison's 1994 fourth felony offender conviction based on the invalidity of the underlying 1981 conviction. Thus Lamison satisfies "the 'in custody' requirement for federal habeas jurisdiction." Id. at ___, 121 S.Ct. at 1573 (quoting Maleng v. Cook, 490 U.S. 488, 493-494, 109 S.Ct. 1923, 1926, 104 L.Ed.2d 540 (1989)).
See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
Petitioner did not file a direct appeal of his November 10, 1981 conviction. However, following his 1994 fourth felony offender conviction, petitioner filed a petition for state habeas corpus relief seeking to vacate that 1994 conviction on the ground that appellate counsel failed to urge the invalidity of the three underlying convictions, including the 1981 guilty plea petitioner challenges in this proceeding. Petitioner also urged that the fourth felony offender conviction was unconstitutional because the underlying convictions were invalid due to the trial judge's failure to advise defendant of his rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The state district judge denied relief. Thereafter, petitioner applied for writs to the state appellate court. In analyzing petitioner's claim of ineffective assistance of counsel, the state court of appeals reviewed the Boykin procedure utilized during the guilty plea colloquy for the 1981 conviction and determined that the colloquy, coupled with the guilty plea waiver form for that conviction, was sufficient to sustain that conviction. State v. Lamison, 694 So.2d 984 (La.App. 4th Cir. 1997). However, the state court of appeals granted Lamison's application for writs, concluding that Lamison's counsel rendered ineffective assistance by failing to challenge the invalidity of one of the other underlying convictions. The court of appeals held that the Boykin procedure used during that guilty plea proceeding was insufficient to sustain that conviction because the trial judge failed to advise Lamison of his right to trial by jury. The Louisiana Supreme Court granted the state's application for a "supervisory and/or remedial writ" and reinstated the fourth felony offender adjudication and the sentence of life imprisonment after concluding that the court of appeals based its decision on an altered transcript of the guilty plea colloquy. After reviewing an unaltered copy of the that colloquy, the Supreme Court held that the district judge properly advised Lamison of the rights he was waiving, and that the transcript of the guilty plea colloquy, coupled with the other evidence introduced a the habitual offender adjudication adequately supported the district judge's determination that Lamison was a fourth felony offender. State v. Lamison, 692 So.2d 1057 (La. 1997)
Additionally, prior to August 14, 1996, petitioner filed a "Motion to Correct Illegal Sentence" seeking to vacate his November 10, 1981 conviction on the grounds that the trial judge failed to comply with the procedure sent out in Boykin v. Alabama by failing to advise him of his right against self-incrimination and his right to confront his accusers, thereby rendering his guilty plea not knowing and voluntary. When the district court failed to rule on petitioner's motion to correct illegal sentence, Lamison filed an application for an "advisory writ of mandamus" with the Louisiana Supreme Court seeking an order directing the state district judge to rule on the pending motion to correct illegal sentence. On January 26, 2001, the Louisiana Supreme Court denied petitioner's application for "Supervisory and/or Remedial Writs." State ex rel Lamison v. State, 784 So.2d 1 (La. 2001).
The record does not indicate when petitioner filed that "Motion to Correct Illegal Sentence. However, the motion must have been filed on or before August 14, 1996, because on that date the state district judge ordered the state to respond to the motion.
EXHAUSTION
Petitioner contends that his November 10, 1981 conviction should be vacated because his counsel rendered ineffective assistance in advising him to plead guilty, thereby rendering his plea not knowing and voluntary, and because the trial judge failed to comply with the constitutional requirements of Boykin v. Alabama by failing to advise petitioner that he had a right to confront his accusers and a right to not incriminate himself and by failing to advise petitioner of the nature of the charge, the minimum sentence for the offense, and the maximum sentence for the offense.
Although the state apparently concedes that petitioner has exhausted his available state remedies, my independent review of the record indicates that petitioner has not exhausted his available state court remedies. The issue of whether Lamison's trial counsel rendered ineffective assistance during the 1981 guilty plea colloquy has never been presented to the Louisiana Supreme Court. Nor has petitioner presented the specific Boykin failures raised herein to the Louisiana Supreme Court. Nevertheless, despite petitioner's failure to exhaust his available state remedies as permitted by 28 U.S.C. § 2254 (b)(2) I deny petitioner's claims on the merits.
TIMELINESS
Before considering the merits of petitioner's claims, I address the state's contention that petitioner's request for federal habeas corpus relief is time barred under 28 U.S.C. § 2244 (d).The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996)(AEDPA) amended 28 U.S.C. § 2244 to establish a one-year limitation period for filing a federal habeas corpus petition. Title 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 movant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(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.
Both petitioner's 1981 conviction and his 1994 multiple offender conviction became final prior to April 24, 1996, the effective date of the AEDPA. Where, as here, petitioner's conviction became final prior to April 24, 1996, the petitioner seeking relief had one year after the effective date of the AEDPA, or until April 24, 1997, within which to timely file an application for federal habeas corpus relief. See United States v. Flores, 135 F.3d 1000, 10005 (5th Cir. 1998). Section § 2244(d)(2) extends the one year limitation in some cases, providing that "the time during which a properly filed application for state post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitations under the subsection."
Although Flores dealt with the limitation period set forth in 28 U.S.C. § 2255, the holding in Flores is equally applicable to cases involving petitions for post-conviction relief filed pursuant to 28 U.S.C. § 2254. See Flanagan v. Johnson, 154 F.3d 196, 200 n. 2 (5th Cir. 1998).
As noted above, the latest date petitioner's motion to correct illegal sentence challenging his 1981 conviction could be deemed filed is August 14, 1996, the date the judge ordered the state to respond to the motion. That motion, which remains pending in the state district court, is an application for "other collateral review under § 2244(d)(2). Thus, the latest date on which the limitations period could have been tolled by the filing of petitioner's motion to correct illegal sentence is August 14, 1996, which means that at most, less than four months of the one year limitation period could have run. Accordingly, Lamison's motion for federal habeas corpus relief is not time-barred.
The only issue before us is petitioner's contention that his 1981 conviction is an invalid predicate conviction for his fourth felony offender conviction. However, under Lackawanna County District Attorney v. Cross, 531 U.S. ___, 121 S.Ct. at 1574, that conviction is conclusively valid."
[O]nce a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction maybe regarded as conclusively valid. See Daniels [v. United States, 523 U.S. 374 ___ 121 S.Ct. 1578, 1583, 149 L.Ed.2d 590 (2001)]. If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained.Id. at ___, 121 S.Ct. at 1574. While the record does not state the exact date petitioner completed serving his sentence for the 1981 conviction, it is quite clear that he completed serving that sentence before he was convicted of simple burglary on October 21, 1993. Subsequent to petitioner's release from prison, the 1981 conviction was "no longer open to direct or collateral attack in its own right."
The Supreme Court did recognize an exception to the general rule announced in Lackawanna when the petitioner challenges "an enhanced sentence on the basis that the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the Sixth amendment, as set forth in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)." Id. However, because petitioner does not allege that there was a failure to appoint counsel in violation of Gideon, he has no basis upon which to challenge the 1981 conviction.
New Orleans, Louisiana, this 15th day of October, 2001.