Jones v. Tanner et al

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATIONS 7 that the pla's petition is dismissed with prejudice and pla's request for issuance of a certificate of appealability is denied. Signed by Judge Ivan L.R. Lemelle on 5/23/2012.(lag, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ARTHUR K. JONES

CIVIL ACTION

VERSUS

No. 11-1721

ROBERT TANNER, WARDER

SECTION “B”(4)

ORDER AND REASONS
Before

the

Court

is

Petitioner

Arthur

K.

Jones’s

(“Petitioner”) Objections (Rec. Doc. No. 8) to the Magistrate
Judge’s Report and Recommendation (Rec. Doc. No. 7), recommending
dismissal with prejudice of Petitioner’s habeas corpus petition
under

28

U.S.C.

§

2254.

Accordingly,

and

for

the

reasons

articulated below,
IT IS RECOMMENDED that the findings of the Magistrate Judge
(Rec. Doc. No. 7) are AFFIRMED, that Petitioner’s application for
federal

habeas

untimely,

and

corpus
that

review

is

Petitioner’s

DISMISSED
request

WITH
for

PREJUDICE

issuance

of

as
a

certificate of appealability is DENIED.
PROCEDURAL HISTORY
Petitioner is a convicted inmate incarcerated in the B.B.
“Sixty” Rayburn Correctional Center in Angie, Louisiana. (Rec. Doc.
No. 7 at 1). He was charged by Bill of Information in Jefferson
Parish, Case No. 00-5302, with distribution of cocaine. Id. He was
later charged in a separate Bill of Information in Jefferson
Parish, Case No. 00-5762, with one count of distribution of cocaine

and two counts of distribution of cocaine within 1000 feet of a
school. Id. at 2.
Petitioner entered pleas of guilty on each count in both cases
on September 19, 2001, after being found competent to stand trial.
Id. He was sentenced to fifteen years in prison at hard labor on
each count in both cases, to run concurrently. Id. Subsequently,
the State filed a multiple bill, and the trial court adjudicated
Petitioner to be a second offender. Id. The trial court resentenced Petitioner on count one in Case No. 00-5762 (distribution
of cocaine) to serve fifteen years as a second offender, to run
concurrently with the other sentences. Id.
Petitioner’s convictions and sentences became final five days
later, on September 26, 2001, when he failed to move for appeal or
reconsideration of his sentence. Id. at 2, 3 (citing Cousin v.
Lensing, 310 F.3d 843, 845 (5th Cir. 2002)) (petitioner’s guilty
pleas became final at the end of the five-day period for filing
notice of appeal under LA. CODE. PROC. ANN. art. 914 (2012);1 see
also, Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003)
(under federal habeas law, a conviction is final when the state
defendant does not timely proceed to the next available step in the
state

appeal

Petitioner

1

process).

filed

for

After

relief

in

his

conviction

state

court

on

became
ten

final,
separate

Acts 2003, No. 949, § 1, LA. CODE CRIM. PROC. ANN. art. 914 (2012),
extended the time in which a criminal defendant could move for
leave to appeal the final order, or judgment, or the ruling on a
timely motion being challenged from five to thirty days.

occasions. (Rec. Doc. No. 7 at 3-6). Petitioner did not file any
claims for relief between August 20, 2004 and August 11, 2008. Id.
at 5, 6. On August 12, 2008, he sought reconsideration of his prior
pro se filed post-conviction writ applications to the Louisiana
Fifth Circuit under the holding in State v. Cordero, 993 So.2d 203
(La. 2008).2 Id. at 6.
On July 18, 2011, Petitioner filed, with the Clerk of this
Court, the instant petition for federal habeas corpus relief, in
which he claims: (1) his guilty pleas were constitutionally invalid
where the trial court failed to advise him of his right against
self-incrimination; and (2) he was adjudicated as a multiple
offender without the State filing a written multiple bill. Id.
The State filed a response in opposition to the instant
petition, alleging it was not timely filed and that the first issue
was not exhausted in state courts. Id. at 7. Petitioner did not
file a reply to the State’s opposition. Id.
CONTENTIONS OF PETITIONER
In

his

Motion

in

Opposition

(Rec.

Doc.

No.

8)

to

the

Magistrate Judge’s Report and Recommendation (Rec. Doc. No. 7),

2

In State v. Cordero, 993 So.2d 203 (La. 2008), the Louisiana
Supreme Court addressed alleged procedural improprieties and
summary dismissal without judicial review of pro se post-conviction
writ applications filed in the Louisiana Fifth Circuit between
February 8, 1994 and May 21, 2007. 993 So.2d 203, 204 (La. 2008)
(per curiam). The Court remanded to the Louisiana Fifth Circuit for
reconsideration pro se writ applications submitted between the
abovementioned dates. Id.
3

Petitioner contends he is entitled to federal habeas corpus relief
for the following reasons: (1) the one-year statute of limitations
set forth in 28 U.S.C. § 22444(d) has not run; and (2) his guilty
pleas were invalid because he was not advised of his right against
self-incrimination,

and

because

the

State

adjudicated

him

a

multiple offender without filing a written multiple offender bill.
(Rec. Doc. No. 8 at 5, 10). Additionally, Petitioner requests a
certificate of appealability. Id. at 10.
CONTENTION OF RESPONDENT
The State did not file a response to Petitioner’s Objections
to the Magistrate’s Report and Recommendation.
LAW AND ANALYSIS
A. Standard of Review
Petitioner’s original writ for federal habeas corpus review
under 28 U.S.C. § 2254 was filed with this Court on June 29, 2011.
As this is after the effective date for the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), applicable to habeas
corpus petitions, the instant petition is governed by § 2254 as
amended by the AEDPA. Flanagan v. Johnson, 154 F.3d 196, 198 (5th
Cir. 1998)(citing Lindh v. Murphy, 521 U.S. 320 (1997)).
The AEDPA restricts the time-period for filing a federal
habeas corpus action to one year from the date the conviction
became final. 28 U.S.C. § 2244(d)(1); see also Duncan v. Walker,
533

U.S.

167,

179-80

(2001).

As
4

noted

above,

Petitioner’s

conviction became final on September 26, 2001.
B. Timeliness of Habeas Petition
The Magistrate Judge found that Petitioner exhausted both
claims in his federal habeas petition in the State court system.
(Rec. Doc. No. 7 at 8). However, the Magistrate Judge did not
consider the merits of Petitioner’s claims, finding that Petitioner
did not timely file his federal habeas petition. Id. Under §
2244(d)(1)(A), a petitioner must bring his federal habeas claim
within one year of the date his conviction became final.3 Duncan v.
Walker, 533 U.S. 167, 179-80 (2001).
In the instant case, the AEDPA’s one-year filing period began
to run on September 27, 2001, the day after Jones’s conviction
became final. See Flanagan, 154 F.3d 196, 200 (1998) (affirming
that Fed. R. Civ. P. 6(a) applies to federal statutory limitation
periods). Accordingly, Petitioner had until September 27, 2002, to
file his federal habeas claims, unless the limitation period was

3

Petitioner claims he was unable to exhaust his State remedies
because of the Louisiana Fifth Circuit’s handling of pro se writ
applications prior to State v. Cordero, 993 So.2d 203 (La. 2008).
(Rec. Doc. No. 8 at 9). However, a petitioner need only give each
of the state courts an opportunity to review his claims. See
Satterwhite v. Lynaugh, 886 F.2d 90, 92 (5th Cir. 1989). Despite
the depth of that review, Petitioner was able and entitled to bring
a federal petition. (Rec. Doc. No. 7 at 13). Thus, the Magistrate
correctly concluded that Petitioner exhausted his State court
remedies by August 20, 2004, and was not prevented from bringing a
federal claim. Id. at 12. Thus, Section 2244(d)(1)(B), providing a
one-year period of limitation for federal habeas corpus
applications, is inapplicable here.
5

extended by statutory or equitable tolling.
1. Statutory Tolling
Section 2244(d)(2) provides that the time during which a
properly filed application for post-conviction or other collateral
review, with respect to the pertinent judgment or claim that is
pending, shall not be counted toward any period of limitation. 28
U.S.C. § 2244(d)(2) (2006). A matter remains “pending” for tolling
purposes until “further appellate review [is] unavailable under
Louisiana’s procedures.” Williams v. Cain, 217 F.3d 303, 310 (5th
Cir. 2000) (quoting Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir.
1999), aff’d, 531 U.S. 4 (2000)).
The phrase “other collateral review” refers to State court
proceedings

challenging

the

pertinent

judgment

subsequently

challenged in the federal habeas petition. (Rec. Doc. No. 9 at 9)
(citing Dillworth v. Johnson, 215 F.3d 497, 501 (5th Cir. 2000));
Nara v. Frank, 264 F.3d 310, 316 (3d Cir. 2001), overruled on other
grounds by Carey, 536 U.S. at 122)). The phrase “pertinent judgment
or claim” requires that the State filings for which tolling is
sought must have challenged the same conviction being challenged in
the federal habeas petition and must have addressed the same
substantive claim. (Rec. Doc. No. 7 at 10) (citing Godfrey v.
Dretke, 396 F.3d 681, 686-88 (5th Cir. 2005)).
In this case, the statute of limitations ran for seven days,
until Petitioner filed a motion to reconsider his sentence on
6

October 4, 2001.4 (Rec. Doc. No. 7 at 10). That motion remained
pending, suspending the one-year filing period, until December 10,
2001, thirty days after the trial court denied the motion and
Petitioner did not seek further review. Id. On December 11, 2001,
the

one-year

filing

period

began

to

run

again

and

did

so

uninterrupted for 314 days until October 21, 2002, when Petitioner
submitted a motion for a treatment program and early release.5 Id.
at 10, 11. That motion remained pending for tolling purposes until
December 12, 2002, thirty days after the trial court ruled and
Petitioner sought no further review. Id. at 11.
On December 12, 2002, the one-year filing period began to run
again, and did so for the forty-four days remaining until it
expired on January 27, 2003.6 Id. No other filings were made until
May 6, 2003. Id. However, pleadings filed after the expiration of
the one-year filing period have no tolling effect. Hulsey v.
Thaler, 421 Fed. Appx. 386, 390 (5th Cir. 2011). After Petitioner
concluded all of his claims for state post-conviction relief on
August 20, 2004, he made no further effort to pursue federal or
state relief for four years. (Rec. Doc. No. 7 at 11).

4

Petitioner had 358 days remaining under the AEDPA’s one-year
filing period.
5

By October 21, 2002, only 44 days of Petitioner’s one-year filing
period remained.
6

The last day was Saturday, January 25, 2003, which shifts the
ending date to the next business day under Fed. R. Civ. P.
6(a)(1)(C).
7

This

notwithstanding,

the

Magistrate

Judge,

out

of

an

abundance of caution, also considered whether Cordero warrants an
extension of the one-year filing period in favor of Petitioner. Id.
at 14. This issue has not been addressed specifically by the United
States Fifth Circuit Court of Appeals. Id. However, such a ruling
would not change the result of the instant case. Id. Petitioner
allowed

more

than

one

year

to

pass

before

he

submitted

his

application for state post-conviction review on May 6, 2003.7 Id.
1. Equitable Tolling
The Supreme Court held in Holland v. Florida, 130 S. Ct. 2549
(2010), that the AEDPA’s one-year filing period may be subject to
equitable tolling. 130 S. Ct. at 2560 (2010). Equitable tolling is
only warranted where: (1) the petitioner has diligently pursued his
rights, and (2) some extraordinary circumstance stood in his way.
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
Here,

Petitioner

has

not

proven

either

of

the

elements

necessary for equitable tolling to be applicable to his claims.
First, the five-year lapse in time during which Petitioner did not
seek to file a federal habeas petition demonstrates a lack of
diligence in asserting his rights. (Rec. Doc. No. 7 at 11). Second,
although Petitioner alleges that the decision in Cordero impeded
7

Because Petitioner’s application for a writ of habeas corpus is
time-barred, this Court need not address the second claim in
Petitioner’s Objections. See Gonzales v. Wilkinson, 269 Fed. Appx.
481, 485 (5th Cir. 2008) (declining to address other issues after
finding the petitioner’s filing to be untimely).
8

his

ability

to

exhaust

his

rights,

the

Magistrate

Judge

acknowledged that Petitioner had exhausted his remedies at the
State level. Id. at 8. Moreover, as noted above, Petitioner allowed
one year to pass before Cordero was decided. (See foot note 3).
Petitioner notes in his Objections that he is a pro se
litigant with no formal legal training. (Rec. Doc. No. 8 at 3).
However, ignorance of the law, even for pro se litigants, generally
does not excuse untimely filing. Gonzales v. Wilkinson, 269 Fed.
Appx. 481, 486 (5th Cir. 2008). Additionally, the lack of legal
counsel does not constitute an “exceptional circumstance” that
would entitle Petitioner to equitable tolling. Id. Thus, the oneyear limitation period in the instant case expired as of January
27, 2003. Further, Petitioner has demonstrated the ability to
access the courts, on multiple occasions as documented above, in
order to present claims for relief.
C. Issuance of Certificate of Appealability
Petitioner requests that this Court grant a certificate of
appealability (“COA”). (Rec. Doc. No. 8 at 10). A COA may issue “if
the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). With respect
to a procedural ruling denying a federal habeas petition, i.e.,
dismissal for untimeliness, Petitioner must show “that jurists of
reason would find it debatable . . . whether the district court was
correct in its procedural ruling.” Johnson v. Quarterman, 483 F.3d
9

278, 284 (5th Cir. 2007) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)). A district court may deny a COA without further
briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th
Cir. 2000).
Here,
ruling–that

reasonable

jurists

Petitioner’s

would

federal

not

habeas

find

the

application

procedural
is

time-

barred–to be debatable. See Thomas v. Tanner, No. 10-1795, 2011
U.S. Dist. LEXIS 104272 at *3 (E.D. La. Sept. 15, 2011) (Vance,
C.J.). The record unequivocally demonstrates that the instant
federal habeas corpus petition was untimely filed. The Magistrate
Judge, in her Report and Recommendation, did not err in calculating
the time that lapsed under the AEDPA’s one-year filing period
before Petitioner brought his federal claim, so this issue is not
debatable. (Rec. Doc. No. 7 at 10-11).
CONCLUSION
Accordingly, IT IS ORDERED that the findings of the Magistrate
Judge (Rec. Doc. No. 7) are AFFIRMED, that Petitioner’s application
for federal habeas corpus review is DISMISSED WITH PREJUDICE as

10

untimely,

and

that

Petitioner’s

request

for

issuance

of

certificate of appealability is DENIED.
New Orleans, Louisiana, this 23rd day of May, 2012.

____________________________
UNITED STATES DISTRICT JUDGE

11

a