Opinion
Civil Action No. 02-2096 Section "K" (2)
January 29, 2003
Before the Court is an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by the petitioner Juventino Munoz, who is presently serving a fifty-year term of imprisonment in Avoyelles Correctional Center in Cottonport, Louisiana without benefit of parole, probation, or suspension of sentence. See St. Rec. Vol. 2 of 6, Minutes of Juventino Munoz's Plea of Guilty 4/4/95. Munoz was convicted of attempted possession with intent to distribute heroin. See id. After considering the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge and Munoz's Objections received on December 23, 2002, and having conducted a de novo review of those portions of the Report and Recommendations to which objections are made as required by 28 U.S.C. § 636 (b)(1), the Court hereby approves the Magistrate's Report and Recommendation and adopts it as its opinion in this matter.
Procedural History:
On April 4, 1995, Munoz entered a plea of guilty to the amended charge of attempted possession with intent to distribute heroin. Munoz filed a notice of appeal when he was sentenced, and later moved for an out of time appeal. The motion was granted, but the Louisiana Fifth Circuit affirmed the trial court conviction on January 28, 1997. According to the magistrate's findings, Munoz's conviction became final on February 27, 1997, when 30 days elapsed after the Louisiana Fifth Circuit affirmed the trial court conviction and when Munoz failed to file for further review in the Louisiana Supreme Court. Munoz filed his application for post-conviction relief in the trial court on June 20, 2000. The trial court denied relief on July 6, 2000. On August 1, 2000, Munoz filed a motion to reconsider that ruling. The trial court again denied relief on August 7, 2000. Thereafter, Munoz filed an untimely writ application with the Louisiana Fifth Circuit, and the Court denied relief on September 19, 2000. The Louisiana Supreme Court also denied Munoz's related writ application on November 16, 2001. On July 8, 2002 he filed the instant petition.
Munoz's Objections
Munoz objects to the magistrate's report and recommendation which found his petition to be time barred. The magistrate concluded that Munoz's petition was time barred because the one-year AEDPA limitations period began to run on February 28, 1997, the date when Munoz's conviction became final. The period ran uninterrupted for 365 days, until February 27, 1998, when his time for filing a federal habeas petition expired. The magistrate found that Munoz had no pending application for state post-conviction relief or other collateral review during that period which could possibly toll the AEDPA one-year time period. See 28 U.S.C. § 2244 (d)(2).
Munoz's first nineteen objections deal with the merits underlying his arrest and eventual plea. Particularly, the first nineteen objections Munoz either agree with or dispute the magistrate's recitation of the facts relating to his case. These first nineteen objections are unfounded. The Court may not address the merits of a federal habeas petition until it has determined that the petition has been filed within the time limits established by 28 U.S.C. § 2244(d)(1) and (2). See Robinson v. Day, 1998 WL 524895 *1 (ED. La 8/19/98) (declining to reach the merits of a habeas petition because the petition was time barred); see also Turner v. Johnson, 177 F.3d 390 (5th Cir. 1999) (affirming district court's ruling that petition was time barred, and therefore not reaching the merits).
Notwithstanding the fact that AEDPA one-year time limit had completely run before Munoz properly filed his state post-conviction relief application, in his Objections to the magistrate's report, Munoz argues that the Court should equitably toll the one-year statute of limitation for his federal habeas petition.
Munoz's challenge to magistrate's report argues that his federal habeas petition is timely because he filed his application for post-conviction relief within the three year time period as set forth in the Louisiana Code of Criminal Procedure Article 930.8(A). Munoz asserts that because the judge informed him of this deadline by handing him a copy of Article 930.8(A), and he filed his post-conviction application in accordance with time limits indicated therein, his federal habeas petition should be timely. He urges the Court to apply equitable tolling on the ground that the judge deceived him by not informing him of the pertinent deadline for filing a federal habeas petition.
This article reads in pertinent part that "[n]o application for post-conviction relief, including applications which seek an out of time appeal, shall be considered if it is filed more than three years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922 . . ." La. C. Cr. P. Art. 930.8(A). Under 930.8(C), the statute states that "[a]t the time of sentencing, the trial court shall inform the defendant of the prescriptive period for post conviction relief." Id.
Analysis
In his petition, Munoz argues that he is entitled to equitable tolling because the state court judge deceived him when the judge informed Munoz about his state post-conviction time limit. According to Fierro v. Cockrell, 294 F.3d 674, 862 (5th Cir. 2002) "equitable tolling thus 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.' (citation omitted). As a consequence, neither `excusable neglect' nor ignorance of the law is sufficient to justify equitable tolling." Equitable tolling only applies in "rare and exceptional circumstances." United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002). In Fierro the court held that equitable tolling was inappropriate because Fierro's failure to file his habeas petition within the applicable limitations period was attributable solely to his mistaken assumption that the statute of limitations did not apply to his case. Fierro, 294 F.3d at 682.
It appears that Munoz's failure to timely file his federal habeas petition is similar the situation in Fierro where the petitioner was ignorant of the statute of limitations on his federal application. Munoz's charge that the judge deceived him is unsupported by the evidence. At most, his allegation of the judge's connivance illustrates that Munoz was unaware of the law pertaining to his federal habeas petition. His accusation does not, as he suggests, illustrate that the judge purposely confused him or did anything other than what he was supposed to do — inform Munoz of the deadline for seeking state collateral review. In addition, Munoz has not offered any evidence that the judge mislead him as to the deadline for filing his federal habeas petition. Munoz may have been unaware of existence of a federal time limit for filing federal habeas petition. However, this ignorance of the law and its applicability does not constitute a "rare and extraordinary circumstance beyond the petitioner's control" as contemplated by the Fifth Circuit. Fierro, 294 F.3d at 682. Therefore, equitable tolling does not apply to this case.
In order for Munoz to challenge his state court conviction in both federal and state court, 28 U.S.C. § 2244(d)(1) (2) require that he file his state post-conviction relief application as well as his federal habeas petition within the one year time limit outlined in § 2244(d)(1). Because he waited more than 365 days before filing both his state and federal applications, he no longer has the opportunity to challenge his conviction in federal court. Accordingly,
IT IS ORDERED that Juventino Munoz's federal habeas petition is hereby DISMISSED WITH PREJUDICE because it is untimely.