Richardson v. Cain et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS 14 . ORDERED that the petition of Michael Richardson 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

MICHAEL RICHARDSON

CIVIL ACTION

VERSUS

NO. 11-2179

N. BURL CAIN

SECTION “J”(5)
ORDER

Before

the

Court

are

the

Magistrate

Judge’s

Report

and

Recommendation (Rec. Doc. 14) and the petitioner’s objections to
same (Rec. Doc. 17).
his

federal

habeas

The petitioner seeks to avoid dismissal of
petition

on

timeliness

grounds,

claiming

equitable tolling due to the rising of the Mississippi River.
Specifically, he argues that he was reasonably led to believe that
a state of emergency on “all legal deadlines” was in effect because
daily call-out prison memoranda had not resumed; he did not have
access

to

newspapers

or

television

broadcasts

concerning

the

flooding; and upon returning to his living quarters at Angola, the
prison was in a state of chaos, such that he had no access to the
law library, legal mail, his own papers, and other items.
Upon review of the petitioner’s objections, the Court ordered
that the District Attorney respond to them and brief the issue of
whether the petitioner is entitled to any equitable tolling of the

statutory limitation period due to any evacuation of the Angola
prison in 2011.

Rec. Doc. 18.

The District Attorney for St.

Tammany Parish, State of Louisiana, filed its responsive brief as
ordered on April 13, 2012.

Rec. Doc. 19.

The State therein avers

that its counsel contacted the records department of the Louisiana
State

Penitentiary

and

was

advised

that,

according

to

the

petitioner’s file, he was not one of the inmates who was evacuated
due to high water in 2011.

The State points out that the

petitioner has submitted no information regarding the dates of any
evacuation

and

argues

that

he

has

failed

to

establish

that

equitable tolling is warranted.
The State also argues that the equitable tolling issue is
mooted by the fact that the petitioner never properly filed a state
post conviction application prior to the expiration of the federal
one-year

statutory

limitation

period.

The

Court

finds

this

argument persuasive, for the following reasons.
The Magistrate Judge noted in her Report and Recommendation
that the petitioner’s conviction became final on January 20, 2008;
that he thus had until January 20, 2009 to either file for federal
relief or to properly file a state post conviction application that
would invoke statutory tolling; and that the petitioner did not
properly file a post conviction application with the state district
court until January 28, 2009.

The Magistrate Judge assumed
2

“arguendo” that the improperly filed post conviction application
that was filed on December 1, 2008 could provide statutory tolling,
and found that the petition would still be time barred.

However,

the Court now finds that the post conviction application did not
provide any statutory tolling because it was not properly filed as
is required by Title 28 U.S.C. Section 2244(d)(2).
For the application to have been properly filed, it would have
had to comply with state law filing requirements.

It did not so

comply: the record indicates that the December 1, 2008 application
was returned for “failure to provide sentencing documents.”

Rec.

Doc. 13, at 6. State law required these sentencing documents to be
provided,1

and

their

absence

application improperly filed.2

rendered

the

post

conviction

Improperly filed, the application

provided no statutory tolling. As a result, the one-year statutory

1

See LA. CODE CRIM. PROC. art. 926(A) (“A copy of the judgment of
conviction and sentence shall be annexed to the petition [for post conviction
relief], or the petition shall allege that a copy has been demanded and
refused.”) (emphasis added); art. 926(E) (“Inexcusable failure of the
petitioner to comply with the provisions of this Article may be a basis for
dismissal of his application.”).
2

See Artuz v. Bennett, 531 U.S. 4, 8 (2000) (“[A]n application is
‘properly filed’ when its delivery and acceptance are in compliance with the
applicable laws and rules governing filings.”); Villegas v. Johnson, 184 F.3d
467, 470 (5th Cir. 1999) (“[W]e hold that a ‘properly filed application’ for §
2244(d)(2) purposes is one that conforms with a state’s applicable procedural
filing requirements.”); Mark v. Michael, No. 08-1261, 2008 WL 4365929, at *3
n.18 (E.D. La. Sept. 23, 2008) (where Louisiana appellate court rejected
petitioner’s application for noncompliance with procedural rule, application
was not properly filed).

3

limitation period expired on January 20, 2009. When the petitioner
re-filed his post conviction application eight days later on
January 28, 2009, the deadline for seeking federal relief had
already passed.

For this reason, the instant petition should be

dismissed with prejudice as untimely.
Even if this were not the case, and statutory tolling had
occurred and continued until May 20, 2011 when the Louisiana
Supreme Court denied the writ application, the petitioner has not
demonstrated an entitlement to equitable tolling. Absent equitable
tolling, the federal filing deadline would have passed on July 11,
2011; the petitioner did not file his habeas petition until August
23, 2011.3
tolling.

It is the petitioner’s burden to establish equitable
Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000),

modified on reh’g, 223 F.3d 797 (5th Cir. 2000).
3

He does not

On this issue, the Court notes one modification to the Report and
Recommendation that does not change the ultimate outcome. The Magistrate
Judge found that, assuming there had been statutory tolling, the AEDPA
deadline would have expired on June 20, 2011. The Court finds that, it would
have expired on July 11, 2011, for the following reasons. On January 20,
2008, the petitioner’s conviction became final. By the time the petitioner
arguendo filed his post conviction application on December 1, 2008, 315 days
of the AEDPA period had passed (rather than 334 days as stated by the
Magistrate Judge). Statutory tolling occurred from that date until May 20,
2011, when the Louisiana Supreme Court denied relief. At that point, 50 days
remained for seeking federal habeas relief. Those 50 days ran out on
Saturday, July 9, 2011, which meant that the petitioner had until Monday, July
11, 2011 to file. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998)
(“We hold that [Federal Rule of Civil Procedure] 6(a) applies to the
computation of the one year limitation period in § 2244(d) of AEDPA.”); FED.
R. CIV. P. 6(a) (if the last day of an applicable period is a Saturday,
Sunday, or legal holiday, the period runs until the end of the next day that
is not one of those days). Even under this modified calculation, he was
clearly more than a month late in filing his federal habeas petition on August
23, 2011.

4

submit any evidence that he was evacuated in 2011 or that any
conditions in the prison during the evacuation period prevented him
from timely filing.4
The Court, having considered the petition, the record, the
applicable law, the Report and Recommendation of the United States
Magistrate Judge, and the petitioner’s objections to the Report and
Recommendation, hereby overrules the objections, approves the
Report and Recommendation of the United States Magistrate Judge,
and adopts it as the Court’s opinion in this matter.

Accordingly,

IT IS ORDERED that the petition of Michael Richardson for
issuance of a writ of habeas corpus under 28 U.S.C. § 2254 is
hereby DISMISSED WITH PREJUDICE as untimely.
New Orleans, Louisiana, this 23rd day of April, 2012.

UNITED STATES DISTRICT JUDGE

4
The petitioner suggests that the Governor imposed a state of emergency
that suspended all legal deadlines because of the rising of the Mississippi
River. The petitioner does not submit or allude to any evidence of any such
suspension of the deadline for filing a federal habeas petition.

5