Bourge v. Herbert et al

Filing 23

ORDER AND REASONS denying 20 Motion for equitable tolling. Signed by Chief Judge Sarah S. Vance on 10/7/2012. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

PHILIP BOURGE

CIVIL ACTION

VERSUS

NO: 07-8813

HOWARD PRINCE, ET AL.

SECTION: R (3)

ORDER AND REASONS
Philip Bourge filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.1 Adopting the Magistrate
Judge's Report and Recommendations,2 the Court dismissed Bourge's
petition as untimely.3 More than two years later, Bourge filed
this motion "for equitable tolling."4 He argues that the Court
should have allowed his habeas petition to proceed, because, for
the past 16 years, he has been "completely unable" to manage his
own affairs due to mental illness.5
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") requires that a petitioner bring his Section 2254

1

R. Docs. 1, 4.

2

R. Doc. 16.

3

R. Doc. 18.

4

R. Doc. 20.

5

Id. at 5.

claims within one year of the date on which his underlying
criminal judgment becomes final, subject to statutory tolling. 28
U.S.C. § 2244(d). As the Magistrate Judge found in his Report and
Recommendations, Bourge's criminal judgment became final on
February 26, 1999; his one-year period for seeking federal habeas
relief was statutorily tolled for about twenty-one months; and
his period for seeking federal habeas relief ultimately expired
on December 6, 2001.6 Bourge filed his petition for a writ of
habeas corpus nearly six years late, on November 13, 2007.7
Bourge asserts that he is entitled to equitable tolling,
because he is a diagnosed schizophrenic; has long been confined
in a special unit at the Elayn Hunt Correctional Center, St.
Gabriel, Louisiaina; "remains heavily medicated, incapacitated
and having to rely on someone else for everything;" "is
completely unable and can do absolutely nothing for himself
regarding the law or preparing his pleadings;" and "could not
effectively communicate with anyone that may be able to assist
him in his filings."8 The only documentation he provides is a
list of prescribed medications with a handwritten note from his
treating physician stating that Bourge "has been diagnosed with
6

R. Doc. 16 at 3-6.

7

R. Doc. 1.

8

R. Doc. 20 at 3, 5.
2

schizophrenia of the paranoid type" and that "he seems to do well
on the above medication regimen."9
The AEDPA statute of limitations "is subject to equitable
tolling in appropriate cases." Holland v. Florida, 130 S. Ct.
2549, 2560 (2010). "[A] 'petitioner' is 'entitled to equitable
tolling' only if he shows '(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
stood in his way' and prevented timely filing." Id. at 2562
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Bourge satisfies neither requirement. First, the record
gives no indication that Bourge has diligently pursued his
federal post-conviction rights. Although Bourge filed an
application for state post-conviction review within one year of
his criminal judgment becoming final, and filed a second
application for state post-conviction review within two years of
filing his first application, he then waited nearly six years
from the denial of his second application for state postconviction review before filing his federal petition. After the
Court denied his petition as untimely, Bourge then waited more
than two years before filing his motion for equitable tolling.
This tardiness "cannot be characterized as diligent pursuit of §

9

R. Doc. 20 appx. B.
3

2254 relief." Smith v. Kelly, 301 F. App'x 375, 377 (5th Cir.
2008). Contrast Holland, 130 S. Ct. at 2565 (petitioner
diligently pursued his post-conviction rights by writing numerous
letters to counsel seeking information about the statute of
limitations, by repeatedly contacting the court and state bar
association in an effort to have his non-responsive attorney
removed from the case, and by preparing his own habeas petition
pro se the very day he discovered his AEDPA clock had expired).
Second, Bourge makes an insufficient showing of
extraordinary circumstances preventing timely filing. "[W]hile
mental illness may toll AEDPA's statute of limitations, it does
not do so as a matter of right." Kelly, 301 F. App'x at 377. A
petitioner must explain how his mental illness prevented him from
pursuing his legal rights. Id. "[P]urely conclusory allegations
regarding his mental illness" will not suffice. Kelly, 301 F.
App'x at 377.
Bourge asserts that he is confined, medicated, unable to do
anything for himself, and unable to communicate effectively with
anyone who could help him with his filings. Given these
assertions, it is difficult to understand how Bourge was able to
file his motion for equitable tolling. The motion is typewritten,
details the procedural history of his habeas petition, contains
adequate legal argument, and includes proper citation to numerous
4

federal cases. Clearly, Bourge now has access to legal materials
and is able to prepare his own filings, or else is receiving
capable legal assistance from some other person. Bourge does not
explain how his mental illness prevented timely filing of his
petition in 2001, or what has changed since then such that he is
now able to file a well-researched pro se motion.

Rather, he

makes "purely conclusory allegations regarding his mental
illness." Id. Moreover, the only documentation he provides
regarding his mental illness casts doubt on the severity of his
condition, as Dr. Gamble writes that Bourge "seems to do well" on
his medication. For these reasons, Bourge fails to show that
extraordinary circumstances prevented timely filing of his habeas
petition.
Accordingly,
IT IS ORDERED that Philip Bourge's motion is DENIED.

7th
New Orleans, Louisiana, this _____ day of October, 2013.

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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