Opinion
CIVIL ACTION NO. 02-0250 SECTION: "I"
April 29, 2002
ORDER AND REASONS
Petitioner, Arthur Parker, 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 Louisiana State Penitentiary, Angola, Louisiana. On July 26, 1995, petitioner was convicted of simple burglary of an inhabited dwelling in violation of La.Rev.Stat.Ann. § 14:62.2 (West 1995). On September 8, 1995, the state district court found petitioner to be a second offender and it sentenced him to a term of twenty-four years imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence, and with credit for time served. Petitioner filed a direct appeal and on May 22, 1996, the Louisiana Fourth Circuit Court of Appeal affirmed the conviction, amended the sentence to delete that provision of the sentence prohibiting parole, and affirmed the sentence as amended. Petitioner did not file an application for supervisory and/or remedial writs with the Louisiana Supreme Court.
State Rec., Vol. I of II, minute entry of July 26, 1995; State Rec., Vol. I of II, jury verdict form.
State Rec., Vol. I of II, transcript of September 8, 1995, pp. 11-12; State Rec., Vol. I of II, minute entry of September 8, 1995.
State v. Parker, No. 95-KA-2216 (La.App. 4th Cir. May 22, 1996) (unpublished); State Rec., Vol. I of 11.
On April 25, 2002, this Court telephoned the office of the Clerk of Court of the Louisiana Supreme Court and confirmed that no such writ application was filed.
On or after May 10, 1999, petitioner filed with the state district court an application for post-conviction relief which was denied on May 21, 1999. Petitioner filed with the Louisiana Fourth Circuit Court of Appeal an application for writs of certiorari and review. On September 9, 1999, the Court of Appeal granted the writ application and it ordered the state district court to reconsider the post-conviction application and to require a response from the state regarding petitioner's allegation that he was incompetent to assist in his defense. After complying with the appellate court's order, on October 15, 1999, the state district court again denied petitioner's post conviction application. On September 20, 2000, petitioner filed with the Louisiana Fourth Circuit Court of Appeal an application for a writ of mandamus, asking that the state district court be ordered to rule on his post-conviction application. Construing the writ as one for supervisory review and finding no error in the state district court's denial, the Court of Appeal denied the writ application on December 21, 2000. Petitioner then filed with the Louisiana Supreme Court an application for a writ of certiorari which was denied on December 14, 2001.
Supplemental State Rec., Vol. I of II. The state record filed with this Court does not reflect the actual date of filing. Because petitioner signed the state post-conviction application on May 10, 1999, that is the earliest date on which it could have been filed.
Supplemental State Rec., Vol. I of II, minute entry dated May 21, 1999.
Supplemental State Rec., Vol. I of II.
State v. Parker, No. 99-K-1531 (La.App. 4th Cir. Sept. 9, 1999) (unpublished); Supplemental State Rec., Vol. I of II.
Supplemental State Rec., Vol. I of II.
Rec. Doc. 8.
State v. Parker, No. 2000-K-2055 (La.App. V Cir. Dec. 21, 2000) (unpublished); State Rec., Vol. II of II.
State Rec., Vol. II of II.
State ex rel Parker v. State, 803 So.2d 987 (La. 2001); State Rec., Vol. II of II.
On January 11, 2002, petitioner filed an application for federal habeas corpus relief. In support of his federal application, petitioner claims:
Rec. Doc. 1. Petitioner signed his application for federal habeas corpus relief on January 11, 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)).
1. Petitioner received ineffective assistance of counsel prior to trial, during the trial, and in post-trial hearings;
2. Petitioner was incompetent to stand trial, unable to assist in his defense, and under the effects of various medications at trial;
3. The trial judge was biased; and
4. Petitioner received ineffective assistance of counsel on appeal.
The state contends that petitioner is also asserting an unexhausted claim that his sentence was excessive. Rec. Doc. 5, p. 1. However, petitioner does not include such a claim in his federal application for habeas corpus relief
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. 5, pp. 2-3.
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.
The Louisiana Fourth Circuit Court of Appeal affirmed petitioner's conviction and sentence on May 22, 1996. Pursuant to La.C.Cr.P. art. 922 (B) (West 1996), petitioner's conviction became final when he failed to file an application for rehearing within the fourteen days allowed. However, petitioner had until June 21, 1996, to seek timely review of the Louisiana Fourth Circuit Court of Appeal's decision by filing a writ application with the Louisiana Supreme Court. Pursuant to 28 U.S.C. § 2244 (d)(1)(A), the one-year period petitioner had to file his application for federal habeas corpus relief began to run on June 21, 1996. Although the one-year period could have been tolled by the proper filing of state court applications for post-conviction or other collateral relief, petitioner had no state court applications pending between June 21, 1996, and June 21, 1997. In the absence of such state applications, petitioner should have filed his application for federal habeas corpus on or before June 21, 1997. Petitioner's federal habeas corpus application was not filed until January 11, 2002, and it was, therefore, untimely filed.
La.C.Cr.P. art. 922 (West 1997) provides:
A. Within fourteen days of rendition of the judgment of the supreme court or any appellate court, in term or out, a party may apply to the appropriate court for a rehearing. The court may act upon the application at any time.
B. A judgment rendered by the supreme court or other appellate court becomes final when the delay for applying for a rehearing has expired and no application therefore has been made.
C. If an application for a rehearing has been made timely, a judgment of the appellate court becomes final when the application is denied.
D. If an application for a writ of review is timely filed with the supreme court, the judgment of the appellate court from which the writ of review is sought becomes final when the supreme court denies the writ.
Supreme Court Rule X, § 5(a) provides in pertinent part: "An application seeking to review a judgment of the court of appeal after an appeal to that court . . . shall be made within thirty days of the mailing of the notice of the original judgment of the court of appeal . . . ." A copy of the certificate of mailing by the Louisiana Fourth Circuit Court of Appeal, showing a mailing date of May 22, 1996, has been made a part of the federal record. Rec. Doc. 9.
See note 18, supra.
The Court also notes that the state record reflects numerous filings between 1996 and 2000 seeking the preservation and production of transcripts and documents. However, such filings cannot fairly be considered applications for state post-conviction relief or other collateral review for tolling purposes "because they were preliminary in nature and did not directly call into question the validity of [petitioner's] conviction or [sentence]." Boyd v. Ward, 2001 WL 533221, at *4 (E.D. La. May 15, 2001).
The Court further notes that petitioner filed a state application for post-conviction relief in 1999. Because that state post-conviction application was filed long after the expiration of the AEDPA's statute of limitations on June 21, 1997, it has 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.