Opinion
No: 99-3867
July 24, 2000
ORDER AND REASONS
Otis Y. Magee (hereinafter "Magee"), petitioner, filed this action under 28 U.S.C. § 2254 challenging his 1994 conviction for attempted second degree murder and illegal possession of a firearm by a convicted felon. Upon review of the record and the law, this Court has determined that the record is sufficient, no evidentiary hearing is needed, and the petitioner is not entitled to relief based on the reasons discussed below.
FACTUAL BACKGROUND
In recognition of judicial deference to state court factual findings, this Court adopts the following factual rendition from State v. Girod, 653 So.2d 664 (La.App. 5th Cir. 1995), as drafted by the Chief Judge Thomas J. Kleibert.
On August 22, 1993, at approximately 11:30 p.m., Officer Stephen Newitt was dispatched to Terrytown, an area of Jefferson Parish, to investigate reports of illegal gunshots being fired. Once there, the officer saw a vehicle, a two- door Cutlass type, which he slowly approached. The vehicle sped off. Newitt followed, and the vehicle stopped a short distance away. As Newitt began to exit his unit, a man, later identified as defendant Timothy Girod, left the stopped vehicle. The officer heard a loud boom and saw a large flash. He testified that he had no doubt that the blast came from the area where Girod was standing. Then, he observed Girod throw something behind his back. The officer took position behind an open door of his vehicle and called for assistance. Newitt saw an assault weapon come out of the passenger door and slide a few feet toward Girod. No attempt was made by Girod to pick up this weapon. Two men remained in the vehicle; Magee, who was seated on the passenger side of the back seat, and Craig Williams, who was the driver. The officer ordered defendant Girod to lie on the ground and ordered Magee and Williams to exit the vehicle. At this point, three backup units arrived and all the men were arrested. The vehicle was searched and two more weapons were found inside the vehicle. As a result of the search, a shotgun was found in the area where Newitt had seen Girod throw an item. Additionally, the front of Newitt's police unit was damaged by gunfire. The officer was not injured. During the trial, it was stipulated between the parties that no fingerprints were taken off the firearms. Girod and Magee were fully advised of their Miranda rights, and each gave statements after they were taken into custody. Girod stated that he "got out the car" with his hands up and "a gun shot went off and (he] got on the ground." In Magee's statement, he contends that when he started to exit the vehicle by putting his foot outside, he heard a blast; then, he returned his foot to the car. Magee also admitted knowing the firearms were in the vehicle and to possession of one of the guns before his arrest. During the trial, Officer Newitt testified he saw a weapon sliding out from the passenger-side door underneath the vehicle to right between the back wheel and the bumper. Defense counsel asked Newitt what he observed Magee do after the blast was heard. Officer Newitt replied: "He was sitting on the passenger side of the vehicle, kind of bent over. Alls I could see was the top part of his head. And then after the weapon slid out from the car, it appeared he became agitated or worried again, jumping from one side of the vehicle to the other." The officer admitted that he never saw Magee aim a weapon at him or threaten him in any way. While he did not see exactly who slid the weapon, Newitt testified that it left the car from Magee's area, the passenger side, and that the other occupant of the car, Williams, was located throughout, the confrontation behind the wheel on the driver's side. He did not hear either of the men yell to Girod that they were sending him another gun. Girod and Magee testified in their defense at trial. Girod stated that when they were stopped, he had the assault weapon on his lap. As he opened the door he put the weapon on the ground under the car. He pushed the door open all the way and exited the vehicle with his hands up in the air. By the time he walked to the back of his vehicle he heard a gun blast. He looked back and yelled that Williams and Magee were "trying to get [him] killed." Girod denied shooting a gun. On cross-examination, he stated that he had "no idea" of how the shotgun got from the vehicle to the street drain behind where he was standing. Further, he had no knowledge of a gun being thrown out of the automobile. However, Girod had seen the shotgun located between the seat and the door on the front passenger side of the vehicle. Magee testified that he accidentally caused the shotgun to fire when he started to exit the vehicle. As he pushed the front passenger seat up, the shotgun fell out of the car onto the ground and fired. Then, he jumped back into the vehicle. During his testimony, Magee also. admitted to his prior felony offenses. On cross-examination, Magee stated that as he exited the vehicle he kicked the shotgun, thus explaining how the gun was found near a street drain two to three feet away, instead of near the vehicle. Magee further testified that he did tell the police that the shotgun accidentally fired, but they failed to put this information in his statement. He denied reading the statement before he signed it.Id. at 666-67.
PROCEDURAL HISTORY
Petitioner, Otis Magee, is a state court prisoner presently incarcerated at Louisiana State Penitentiary at Angola, Louisiana. Defendants, Timothy Girod and Otis Magee, were charged jointly by bill of information with attempted first degree murder, a violation of La. Rev. Stat. § 14:30 on September 8, 1993. Magee was also charged with illegal possession of a firearm by a convicted felon, pursuant to La. Rev. Stat. § 14:95.1. A joint jury trial took place on February 23, 1994. Defendant Girod was found guilty as charged. Defendant Magee was found guilty of the responsive verdict of attempted second degree murder and guilty of illegal possession of firearm by a convicted felon. The verdict was rendered on February 24, 1994. See State Record vol. 5.
The trial court sentenced defendant Girod to thirty-five years at hard labor. Magee was sentenced to thirty years at hard labor for the attempted murder conviction and to ten years without probation, parole or suspension of sentence for the illegal firearm possession offense. However, the state subsequently filed a multiple offender bill of information alleging that Magee had a previous conviction for violating La. Rev. Stat. § 14:34, Aggravated Battery, a felony under the law of Louisiana. At the multiple-bill hearing on April 19, 1994, Magee was adjudicated a multiple felony offender pursuant to La. Rev. Stat. § 15:529.1. Magee's original sentence was vacated and he was re-sentenced to fifty years at hard labor for the attempted second degree murder conviction with the previously imposed sentence for illegal firearm possession to run consecutively. See State Record vol. 5.
On March 29, 1994, both defendants filed an appeal in the Louisiana Fifth Circuit Court of Appeal, contending there was insufficient evidence to convict them of attempted murder. Magee did not appeal his conviction on the weapons possession charge. The appeals were denied on March 15, 1995. State v. Girod, 653 So.2d 664, 669 (La.App. 5th Cir. 1995). However, the Louisiana Court of Appeal did remand the case to the district court to correct the patent error of failing to notify the defendants of the prescriptive period for applying for post-conviction relief as is mandated by La. Code Crim. Proc art. § 930.8C. See Girod, 653 So.2d at 669. On March 22, 1995, the district court formally notified Girod and Magee of the three-year prescriptive period by providing copies of La. Code Crim. Proc art. § 930.8.
In 1999, the filing period for such applications was reduced to two years. See La. Code Crim. Proc. art. § 930.8A (West Supp. 2000).
A judgment rendered by the supreme court or other appellate court becomes final when the delay for applying for rehearing has expired and no application therefor has been made. See La. Code Crim. Proc art. § 922B. Magee did not apply for rehearing and did not file a direct appeal to the Louisiana Supreme Court. Thus, Magee's sentence became final on March 29, 1995, fourteen days after the rendition of the judgment by the Louisiana Court of Appeal. See La. Code Crim. Proc art. § 922A. The three-year prescriptive period for post-conviction relief ran between March 29, 1995 and March 29, 1998. See La. Code Crim. Proc. art. § 930. BA.
During the period between April 1995 to July 1997 the record reflects no activity regarding Magee's case. On July 29, 1997 Magee signed an application for post-conviction relief which was stamped as filed by certified mail on September 17, 1997. The application was timely because it was submitted prior to the March 29, 1998 deadline for Magee's application for postconviction relief. See La. Code Crim. Proc. art. § 930.8A. The application contained the following claims: (1) the conviction was attained absent proof of guilt beyond a reasonable doubt; (2) counsel was ineffective in failing to sever the two counts against Magee; 3) counsel was ineffective in failing to sever the trial of Magee from the trial of co-defendant Girod; and (4) the admission of evidence of other crimes tainted the fairness of the trial. In response to a Supervisory and/or Remedial Writ filed by Magee, the Louisiana Supreme Court instructed the district court to consider and act on the petitioner's application for post-conviction relief. State ex rel. Otis Y. Magee v. Louisiana, 719 So.2d 1273 (La. 5/29/98). On June 24, 1998, the district court rejected each of the arguments and subsequently denied the application for post-conviction relief.
Magee then filed a writ of review in the Louisiana Fifth Circuit Court of Appeal on August 21, 1998. The Louisiana Court of Appeal denied the application on September 3, 1998, holding there was no error in the district court's ruling against post-conviction relief. Likewise, the Louisiana Supreme Court found no error and denied petitioner's application for Supervisory and/or Remedial Writ. State ex rel. Otis Y. MaGee v. Louisiana, 747 So.2d 1136 (La. 10/1/99)
On November 22, 1999, Magee filed the present writ of habeas corpus pursuant to 28 U.S.C. § 2254. In this petition, Magee raises identical claims to those presented in his 1997 application for post-conviction relief.
TIMELINESS OF WRIT
The Antiterrorism and Effective Death Penalty Act (hereinafter "AEDPA"), applies to all habeas corpus petitions filed in federal court after April 24, 1996. See Lindh v. Murphy. 521 U.S. 320, 117 S.Ct. 2059, 2060, 138 L.Ed.2d 481 (1997) Magee signed and filed his application in this Court on November 22, 1999. Thus, Magee's case is governed by the AEDPA.
Pleadings are considered "filed" for prescriptive purposes on the date it is delivered to prison officials for mailing. See Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995). The Southern District of Georgia has inferred the signature date on a 28 U.S.C. § 2255 motion was the date movant deposited the motion with prison officials for forwarding to the court. See United States v. O'Kaine, 971 F. Supp. 1479, 1480 (S.D. Ga. 1977).
The AEDPA established a one-year statute of limitations on an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244 (d)(1)(a). In order to avoid retroactive effect, the Fifth Circuit has held that convictions prior to enactment of the AEDPA are to be given a one-year grace period from April 24, 1996 to April 24, 1997. See Flanagan v. Johnson, 154 F.3d 196, 201-02 (5th Cir. 1998). In the instant case, petitioner's judgment became final on March 29, 1995, fourteen days after the Louisiana Court of Appeal denied his direct appeal. See La. Code Crim. Proc art. 922A. As this date is prior to the adoption of the AEDPA, the limitations period began to run for Magee on April 24, 1996. Thus, the State argues Magee's § 2254 habeas corpus petition is time-barred because it was filed more than two and one-half years past the April 24, 1997 deadline. The Court finds Magee's federal petition for writ of habeas corpus filed on November 22, 1999 is untimely unless the grace period was tolled.
Section 2244 provides that the time during which a "properly filed application for State post-conviction or other collateral review" is pending shall not be counted toward any period of limitation under this section. See 28 U.S.C. § 2244 (d)(2); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998). The record does not reflect that there was a pending application for postconviction relief or other collateral review on behalf of the petitioner's case between April 24, 1996 and April 24, 1997. After the Louisiana Court of Appeal rejected the insufficiency of evidence argument put forth on appeal, Magee did not apply for a rehearing and made no attempt for an appeal to the Louisiana Supreme Court. Furthermore, the petitioner did not file an application for post-conviction relief until July 29, 1997. A proper application for state post-conviction relief, in accordance with La. Code Crim. Proc. art. § 930.8, filed after the expiration of the AEDPA's one-year grace period cannot convert Magee's federal writ of habeas corpus into a timely filed petition. Therefore, the Court finds that Magee's application for post-conviction relief did not toll the AEDPA's one-year limitations period. Williams v. Cain, 2000 WL 863132 (E.D.La. June 27, 2000); Bogan v. Moore, 55 F. Supp.2d 597 (S.D. Miss. 1999).
Magee's application for post conviction relief was signed on July 29, 1997 but actually received by certified mail and filed on September 17, 1997.
Moreover, Magee has failed to proffer any arguments that demonstrate circumstances which would support equitable tolling of the prescriptive period under § 2244(d)(1). The doctrine of equitable tolling is applied only in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998). Fifth Circuit jurisprudence has established that a "petitioner's incarceration prior to AEPDA's passage does not present an extraordinary circumstance warranting equitable tolling." Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000) (citation omitted). Furthermore, neither petitioner's pro se status nor the unawareness of the AEDPA's requirements constitute circumstances to implicate the court's equitable discretion in tolling the statute of limitations. See Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999). Magee has made no attempt to explain his delay and does not qualify for equitable tolling under § 2244(d)(1)
CONCLUSION
Petitioner's conviction became final prior to the enactment of the AEDPA and he filed this habeas petition more than one year after the effective date of the AEDPA. The state record is devoid of any pending applications for state post-conviction or other collateral review during the one-year grace period. The timely filing for post-conviction relief after April 24, 1997 does not extend the filing period for a federal writ of habeas corpus. Furthermore, petitioner has failed to demonstrate circumstances which would support equitable tolling. Because Magee does not attempt to explain the delay in filing his federal petition, the Court need not employ equitable discretion by tolling the prescriptive period. Consequently, the AEDPA's one-year filing period has expired, barring petitioner's writ of habeas corpus. For these reasons, the court dismisses the petition with prejudice as untimely filed and does not address the merits of petitioner's application. Accordingly,
IT IS ORDERED that the Petition for Writ of Habeas Corpus Relief under 28 U.S.C. § 2254 filed by Otis Y. Magee is hereby DISMISSED WITH PREJUDICE as untimely filed under 28 U.S.C. § 2244 (d).