Smith v. Cain

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS 11 . ORDERED that petition of Darrell Smith for issuance of a writ of habeas corpus under 28:2254 is DISMISSED WITH PREJUDICE as untimely. Signed by Judge Carl Barbier.(gec, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DARRELL SMITH

CIVIL ACTION

VERSUS

NUMBER: 11-1895

BURL CAIN, WARDEN

SECTION: "J"(5)
ORDER

Before the Court is petitioner Darrell Smith’s objection (Rec.
Doc. 12) to the Magistrate Judge’s Report and Recommendation
finding that the petition should be dismissed as untimely (Rec.
Doc. 11).

The petitioner’s objection is without merit.

The

petitioner’s arguments concerning the effectiveness of his counsel,
his

claim

of

actual

innocence

of

the

criminal

convictions

underlying his enhanced sentence as a habitual offender, and the
constitutionality of the state habitual offender law under which he
was

sentenced

are

improper

because,

as

the

Magistrate

correctly found, the instant petition is time-barred.

Judge

Moreover,

the petitioner has failed to even allege facts underlying any
possible argument for equitable tolling of the limitation period.1

1

Specifically, the petitioner does not allege any facts as to how
alleged ineffective assistance of counsel could have prevented the timely
filing of his federal habeas petition. Further, claims of actual innocence do
not justify equitable tolling. Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir.
2002), cert. denied, 539 U.S. 918 (2003). Lastly, the petitioner cites no
case supporting his assertion that his allegation of the unconstitutionality

The Court, having considered the petition, the record, the
applicable law, and the Report and Recommendation of the United
States

Magistrate

Judge,

hereby

overrules

the

petitioner’s

objection to the Magistrate Judge's Report and Recommendation,
approves the Report and Recommendation, and adopts it as the
Court’s opinion in this matter.

Accordingly;

IT IS ORDERED that the petition of Darrell Smith for issuance
of a writ of habeas corpus under Title 28 U.S.C. § 2254 is hereby
DISMISSED WITH PREJUDICE as untimely.
New Orleans, Louisiana, this 27th day of February, 2012.

UNITED STATES DISTRICT JUDGE

of the state habitual offender law should result in equitable tolling.

2