Harris v. Cain et al
Filing
16
ORDER & REASONS granting 15 Motion for Reconsideration re 11 Order Adopting Report and Recommendations; However, pla's objections are overruled and 3 Petition for Writ of Habeas Corpus is dismissed with prejudice. Signed by Judge Ivan L.R. Lemelle on 7/8/2011. (lag, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LARRY HARRIS
CIVIL ACTION
VERSUS
NO. 10-1607
BURL CAIN, WARDEN
SECTION “B”(5)
ORDER AND REASONS
Before the Court is Petitioner Larry Harris’s (“Harris”)
Motion to Reinstate a Timely Filed Objection to the March 1, 2011
Report and Recommendation of United States Magistrate Judge Alma
Chasez, which recommended that Petitioner’s habeas corpus petition
under 28 U.S.C. § 2254 be dismissed with prejudice as untimely.
(Rec. Doc. Nos. 10, 14, 15).
In light of his objection, Harris
also seeks a reconsideration of this Court’s March 21, 2011 Order
of Dismissal of his habeas corpus petition (Rec. Doc. Nos. 11, 15).
For the following reasons,
IT IS ORDERED that Petitioner’s Motion to Reinstate a Timely
Filed Objection and Motion for Reconsideration (Rec. Doc. No. 15)
is GRANTED; however, Petitioner’s objections are overruled, and the
habeas corpus petition is dismissed with prejudice.1
On April 25, 2003, a Jefferson Parish jury found Harris guilty
of second degree murder and sentenced him to life imprisonment at
hard labor without parole, probation, or suspension of sentence.
1
We are grateful for the work on this case by Eric Cusimano, a Loyola
University of New Orleans College of Law extern with our chambers.
1
(Rec. Doc. No. 10).
Harris is presently incarcerated at Louisiana
State Penitentiary in Angola, Louisiana.
(Rec. Doc. No. 10).
On
March 30, 2004, the Louisiana Fifth Circuit Court of Appeal
affirmed
Harris’s
conviction
and
sentence,
and
the
Louisiana
Supreme Court denied Harris’s writ application on October 29, 2004.
State v. Harris, 871 So.2d 599 (La. App. 5 Cir. 2004); State v.
Harris, 885 So.2d 584 (La. 2004).
Harris did not seek a writ of
certiorari from the U.S. Supreme Court within the prescribed
ninety-day period, and his conviction became final on January 27,
2005.
See U.S. Sup. Ct. R. 13(1); Roberts v. Cockrell, 319 F.3d
690, 693 (5th Cir. 2003), cert. denied, 529 U.S. 1099 (2000).
On October 31, 2005, Harris filed an application for postconviction relief with the Jefferson Parish trial court, alleging
a denial of his right to confront his accusers; a denial of his
right to effective assistance of counsel; and, as the result of
cumulative errors, a denial of his right to a fair trial (Rec. Doc.
10).
The state district court denied this application on November
16, 2005 (Rec. Doc. 10).
On December 19, 2005, Harris filed a writ
application with the Louisiana Fifth Circuit Court of Appeal, again
citing his original three allegations from his state trial court
application, and the Louisiana Fifth Circuit Court of Appeal
similarly denied Harris’s writ application on January 5, 2006.2
2
There have been documented reports of impropriety regarding the Louisiana
Fifth Circuit Court of Appeals handling of pro se petitions for writs of
habeas corpus during the time frame of Harris’s application. These reports
are cited by Harris in his objection to the Report and Recommendation of
Magistrate Judge Chasez (Rec. Doc. 14); however, the effect of the Louisiana
Fifth Circuit’s improprieties are ultimately irrelevant in the final
2
Harris did not seek review from the Louisiana Supreme Court at this
immediate time.
However, on July 2, 2008, Harris filed a “Petition for Writ of
Certiorari” with the Louisiana Supreme Court, complaining that his
original post-conviction application was not properly reviewed by
a three-judge panel of the Louisiana Fifth Circuit Court of Appeal.
(Rec. Doc. No. 10). The Louisiana Supreme Court in accordance with
the procedures set forth in State v. Cordero, 993 So.2d 203 (La.
2008) transferred Harris’s case to an insulated three-judge panel
of the Louisiana Fifth Circuit Court of Appeal, which again
reviewed Harris’s initial writ application, and on February 18,
2009 the Louisiana Fifth Circuit denied Harris’s claims on the
merits.3
Harris
State ex rel. Harris v. State, 993 So.2d 203 (La. 2008);
v.
Louisiana,
No.
(unpublished opinion).4
08-WR-943
(La.
App.
5
Cir.
2009)
Harris filed a writ application with the
Louisiana Supreme Court seeking relief from the Louisiana Fifth
Circuit Court of Appeal’s February 18, 2009 decision, which the
Court denied on February 12, 2010.
State ex rel.
Harris v. State,
27 So.3d 847 (La. 2010).
determination of Harris’s petition as untimely, as it will be shown that even
if this period of time is excused from consideration, Harris’s instant writ
application must still be denied.
3
In accordance with an en banc resolution of the Louisiana Fifth Circuit Court
of Appeal, in State v. Cordero, 993 So.2d 203 (La. 2008), the Louisiana
Supreme Court, acknowledged and addressed the alleged improprieties of the
Louisiana Fifth Circuit Court of Appeal’s pro se habeas corpus petition
review, by transfering all applications currently filed with the Court to an
insulated three-judge panel of the Louisiana Fifth Circuit Court of Appeal.
4
A copy of the Louisiana Fifth Circuit’s February 19, 2009 unpublished
opinion is contained in the State rec., vol. 29 of 29, tab 19.
3
On May 25, 2010, Harris filed the instant federal habeas
corpus petition.
(Rec. Doc. No. 10). On March 1, 2011 Magistrate
Judge Chasez filed a Report and Recommendation advising this Court
that Harris’s petition for a writ of habeas corpus be dismissed
with prejudice as untimely.
(Rec. Doc. No. 10).
The Magistrate
Court mailed the Report and Recommendation on March 1, 2011 from
New Orleans to Angola, Louisiana, and Harris received it on March
3, 2011.
(Rec. Doc. No. 15).
Harris presented his objection to
prison officials on March 15, 2011 for mailing; however, it was not
properly filed with this Court until March 22, 2011, after an order
of dismissal had already been filed the previous day.
No. 15)(Rec. Doc. No. 11).
(Rec. Doc.
Without review of Harris’s objection
this Court followed Magistrate Judge Chasez’s recommendation and
denied with prejudice Harris’s motion for a writ of habeas corpus
under 28 U.S.C. § 2254.
The petitioner, Harris, seeks reinstatement of his objection
to Magistrate Judge Chasez’s Report and Recommendation of March 1,
2011, and this Court’s reconsideration of it’s March 21, 2010 order
to dismiss as untimely his federal habeas corpus petition.
Doc. No. 15)(Rec. Doc. No. 11)
(Rec.
Harris contends: 1) that in
properly submitting his objection to prison officials for mailing
on March 15, 2011, it should be deemed filed at that time; 2) that
his objection should have been considered by this Court prior to
its dismissal of his petition, and at this time should now be
reinstated
and
reviewed;
3)
that
4
upon
consideration
of
his
objection this Court should find his federal habeas corpus petition
timely and proceed with deliberation of the petition.
The Jefferson Parish District Attorney’s Office contends that
regardless of the timeliness of Harris’s objection, his federal
habeas corpus petition was at the outset filed after the one-year
limitation period allowed by the Antiterrorism and Effective Death
Penalty Act of 1996; therefore, the instant petition should be
denied as untimely.
I.
Motion to Reinstate Timely Filed Objection
According to 28 U.S.C. § 636(b)(1):
Within fourteen days after being served with a copy any
party may serve and file written objections to such
proposed findings and recommendations as provided by
rules of court. A judge of the court shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objections are made. A judge of the court may accept,
reject, or modify, in whole or in part the findings or
recommendations made by the magistrate judge. The judge
may also receive further evidence or recommit the matter
to the magistrate judge with instructions.
28 U.S.C. § 636(b)(1) (2011).
Taking the 14 day time limit to hear objections into account,
and considering Harris’s status as an inmate at Louisiana State
Penitentiary,
the timeliness of Harris’s objection to Magistrate
Judge Chasez’s Report and Recommendation of March 1, 2011, should
be assessed in light of the “mailbox rule.”
In Causey v. Cain, 450 F.3d 601, 604-605 (5th Cir. 2006), the
United States Fifth Circuit applied the federal “mailbox rule” when
determining the filing date of state court pleadings for the
5
purpose of determining the timeliness of a federal habeas petition.
Applying the “mailbox rule,” a pro se prisoner files a pleading on
the date he or she delivers the pleading to prison officials for
mailing.
See Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir.
1995).
On March 3, 2011 Harris was served with the Report and
Recommendation dated March 1, 2011; therefore he had until March
17, 2011, 14 days later, to file his objections with this Court.
Although Harris’s objection was not received by this Court until
after the court order dated March 21, 2011 dismissing Harris’s
petition without objection, the objection should be considered
filed on March 15, 2011, the date when Harris presented his
objection to prison officials for mailing.
The 14 day period for
objection following Harris’s receipt of Magistrate Judge Chasez’s
Report and Recommendation, would have expired on March 17, 2011,
after
Harris
had
submitted
his
objection
Penitentiary officials for mailing.
to
Louisiana
State
Therefore, Harris’s objection
should be considered timely filed and as such is hereby reinstated
and considered in weighing his habeas corpus petition.
II.
Harris’s Habeas Corpus Petition
This case is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No 104-132, 110 Stat. 1214.
The AEDPA went into effect on April 24, 1996 and applies to habeas
petitions filed after that date. Flanagan v. Johnson, 154 F.3d 196,
198 (5th Cir. 1998)(citing Lindh v. Murphy, 521 U.S. 320 (1997)).
6
Harris’s initial habeas corpus petition to the federal trial court
was made on May 25, 2005, and therefore the AEDPA applies to
Harris’s petition.
The
AEDPA
requires
a
petitioner
to
bring
his
or
her
application for a federal writ of habeas corpus within one year of
the date his or her conviction becomes final.
28 U.S.C. §
2244(d)(1)(A); Duncan v. Walker, 533 U.S. 167, 179-180 (2001).
Harris’s conviction became final on January 27, 2005.
Doc.
No.
10).
Applying
the
AEDPA’s
statute
of
(Rec.
limitations
literally, Harris had until January 27, 2006 to file the instant
federal habeas corpus petition.
Therefore, his petition must be
dismissed as untimely, unless the one-year limitation period was
interrupted or tolled in a matter provided by the applicable law.
“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[].” 28 U.S.C. § 2244(d)(2).
To delay the
AEDPA’s one-year limitation period does not provided for the
creation of a new, one-year term during which the federal habeas
petition may be filed after the conclusions of state court postconviction proceedings; rather, the statute establishes a tolling
period that is subtracted from the one-year limitation period.
Duncan, 533 U.S. at 175-178; Flanagan, 154 F.3d at 199 n.1; accord
Brisbane v. Beshears, 161 F.3d 1, 1998 WL 609926 at *1 (4th Cir.
Aug. 27, 1998) (Table, Text in Westlaw); Gray v. Waters, 26 F.
7
Supp. 2d 771-772 (D. Md. 1998).
A post-conviction application is
considered “properly filed” in accordance with Section 2244(d)(2),
when the applicant conforms with the state’s applicable filing
requirements. Williams v. Cain, 217 F.3d 303, 306 (5th Cir. 2000).
Furthermore, a matter is “pending” for the purposes of section
2244(d)(2) “as long as the ordinary state collateral review process
is
‘in
continuance’”
until
“further
appellate
review
[is]
unavailable under [Louisiana’s] procedures.” Carey v. Saffold, 536
U.S. 214, 226 (2002); Williams, 217 F3d. at 310.
The AEDPA’s one-year statutory limitation may also be delayed
by equitable tolling.
that
the
one-year
The United States Supreme Court has held
statute
of
limitations
period
in
Section
2244(d)(1) of the AEDPA may be equitably tolled only when the
petitioner
has
pursued
his
rights
diligently
and
rare
or
extraordinary circumstances exist which prevented timely filing.
Pace v. Diguglielmo, 544 U.S. 408, 418 (2005); Fisher v. Johnson,
174 F.3d 710, 713 (5th Cir. 1999); Davis v. Johnson, 158 F.3d 806,
810
(5th
Cir.
1998),
cert.
denied,
526
U.S.
1074
(1999).
Furthermore, equitable tolling is warranted only in situations
where the petitioner was actively misled or is prevented in some
extraordinary way from asserting his rights.
Pace, 544 U.S. at
418-19; Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir 2002).
The one-year AEDPA limitation period began to run in this
case, the day after Harris’s conviction became final, January 28,
2005, running uninterrupted for 276 days, until October 31, 2005,
8
when Harris filed an application for state post-conviction relief
with the state district court. This filing began a tolling period,
as previusly discused regarding 28 U.S.C. § 2244(d)(2), which
continued for the duration of state post-conviction proceedings.
The state district court denied Harris’s post-conviction
relief on November 16, 2005, and Harris could then pursue an
application with the Louisiana Fifth Circuit Court of Appeals
within 30 days in accordance with state rules as regulated by the
AEDPA.
Harris, however, did not file his petition for a writ of
habeas corpus with the Louisiana Fifth Circuit Court of Appeal
until December 19, two days after the 30 day time period; however,
Harris cites the effects of Hurricanes Katrina and Rita: prison
over-crowding, limited prison-library access, etc. as reasons for
this two-day delay; as an extraordinary circumstance these two-days
arguably qualify for equitable tolling; however, as will be shown,
tolling for December 17 and 18 is ultimately moot in totaling the
AEDPA’s one-year limitation and determining its effect on the
timeliness of this petition. (Rec. Doc. No. 14).
Furthermore, after the alleged improprieties of the Louisiana
Fifth Circuit’s pro se habeas corpus petition review were addressed
in the Louisiana Supreme Court’s handling of State v. Cordero, 993
So.2d 203 (La. 2008), the issue arises of whether or not this
matter qualifies Harris for equitable tolling at least from the
time the Louisiana Fifth Circuit denied his application on January
5,
2006,
if
not
from
as
early
9
as
the
time
of
his
initial
application to the Louisiana Fifth Circuit Court of Appeal on
December 19, 2005.
However, as will be shown, even if Harris is
afforded equitable tolling during the entire duration of time
between his state court denial on November 16, 2005 and his
“Petition for Writ of Habeas Corpus” filed with the Louisiana
Supreme Court on July 2, 2008, the AEDPA’s statute of limitation
still would have run prior to the filing of the instant application
of federal habeas corpus relief on March 25, 2010.
After his conviction was made final on January 27, 2005, 276
days expired before Harris filed his original post-conviction
application, leaving 89 days until the AEDPA statute of limitations
would run in the absence of tolling.
Excusing on the basis of
equitable tolling the time period beginning with the state trial
courts November 16, 2005 rejection of Harris’s petition to the
denial of Harris’s second “Petition for Writ of Certiorari” on
February 12, 2010, the 89 remaining days expired from February 13,
2010 to May 25, 2010, when Harris made the instant writ of habeas
corpus petition with this court.5
Harris did not have any pending
legal action during this time period that would allow for tolling
5
The tolling during this time period is surely qualified under 28 U.S.C.
2244(d)(2) when Harris has “properly filed,” “pending” legal action; though,
it is only arguable that the improprieties of the Louisiana Fifth Circuit’s
pro se habeas corpus petition review process would qualify for equitable
tolling as codified by case law. However, as has been shown, even completely
disregarding this time period, Harris has still exceeded the AEDPA’s one year
statutory limit to file a federal habeas corpus petition. Furthermore, this
extends to the two-day delay of December 17 and December 18, 2005.
10
under 28 U.S.C. 2244(d)(2), nor has he presented evidence arguing
that this time period should be equitably tolled.6
Accordingly,
the
instant
petition
for
habeas
relief
is
dismissed with prejudice, as it was untimely filed after the
expiration of the AEDPA’s one year statute of limitations.
New Orleans, Louisiana, this 8th day of July, 2011.
6
Harris’s objection to the March 1, 2011 Report and Recommendation of United
States Magistrate Judge Chasez does not address the time period between
February 13, 2010 and May 25, 2011; rather, it asks for equitable tolling of
his two-day delay in petitioning the Louisiana Fifth Circuit Court of Appeals
on December 19, 2005 and for the period following this petition through his
“Petition for Writ of Certiorari” to the Louisiana Supreme Court on October 2,
2008.
11
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