Lane v. Rogers
Filing
16
ORDER AND REASONS: Ordered that petitioner's 15 Objections to Report and Recommendations are Overruled; the Magistrate Judge's REPORT AND RECOMMENDATION 14 is Adopted; and petitioner's application for habeas corpus relief is dismissed with prejudice as untimely. Signed by Judge Ivan L.R. Lemelle.(ijg, ) (NEF: MJ Knowles)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HELEN LANE
*
*
*
*
*
*
VERSUS
JIM ROGERS, WARDEN
CIVIL ACTION
No. 12-340
SECTION “B”(3)
ORDER AND REASONS
Considering the instant § 2254 record, and for the reasons
noted below, IT IS ORDERED that: (1) Petitioner’s Objections (Rec.
Doc. No. 15) are OVERRULED; (2) the Magistrate Judge’s Report and
Recommendation (Rec. Doc. No. 14) is ADOPTED as the opinion of the
Court; and (3) Petitioner’s application for federal habeas corpus
relief is DISMISSED WITH PREJUDICE as untimely.
Petitioner Helen Lane (“Petitioner”) is a state prisoner
incarcerated at the Louisiana Correctional Institute for Women in
St. Gabriel, Louisiana. (Rec. Doc. No. 14 at 1). On April 9, 2002,
Petitioner pleaded guilty to five counts of possession of cocaine
with
intent
to
distribute
under
Louisiana
law.
Id.
She
was
sentenced on each count to concurrent terms of eighteen years
imprisonment. Id. at 1-2. On the same day, Petitioner also pleaded
guilty to being a multiple offender. Id. at 2. She was subsequently
re-sentenced on the first count to a concurrent term of eighteen
years imprisonment, without the benefit of probation or suspension
of sentence. Id.
On April 24, 2002, Petitioner filed a motion for appeal with
the state district court. Id. The district court denied her motion
as untimely on June 6, 2002, and instructed Petitioner to seek an
“out-of-time” appeal by filing an application for post-conviction
relief. Id. Petitioner did not file any such applications. Id.
Nearly four years later, on January 31, 2006, Petitioner filed
a motion to correct an allegedly illegal sentence with the state
district court. Id. The district court denied Petitioner’s motion
on March 27, 2006. Id. Petitioner also filed a related writ
application that the Louisiana Fifth Circuit Court of Appeals
denied on May 11, 2006. Id. at 2-3. Petitioner did not seek review
of that judgment by the Louisiana Supreme Court. Id. at 3.
On July 2, 2008, Petitioner filed an original application
directly with the Louisiana Supreme Court, following its decision
in State v. Cordero, 993 So.2d 203 (La. 2008).1 Id. The Louisiana
Supreme Court transferred that petition to the Fifth Circuit for
reconsideration on October 10, 2008. Id. The Fifth Circuit denied
Petitioner’s application for relief on February 25, 2010. Id. Then,
2
In State v. Cordero, 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 all pro se writ applications submitted between the above
mentioned dates to the Louisiana Fifth Circuit for reconsideration. Id.
2
on February 25, 2011, the Louisiana Supreme Court denied a related
writ application submitted by Petitioner. Id.
While Petitioner’s motion was pending before the Louisiana
Supreme Court, she also sought relief in the state district court.
Id. On March 3, 2009, she filed a “Motion for Reduction/Amendment
of Sentence,” which the district court denied on March 20, 2009.
Id. at 3-4. On August 19, 2009, she filed a “Motion to Correct an
Illegal Multiple Bill Sentence,” which the court denied on August
31, 2009. Id. at 4.
Over two years later, on January 23, 2012, Petitioner filed
the instant application for federal habeas corpus relief. Id. The
Magistrate Judge issued a Report and Recommendation (Rec. Doc. No.
14) on June 20, 2012, recommending that Petitioner’s application
for federal habeas relief be dismissed with prejudice. In response,
Petitioner filed her Objections to the Report and Recommendation of
the United States Magistrate Judge. (Rec. Doc. No. 15).
Petitioner filed the instant writ for federal habeas corpus
review pursuant to 28 U.S.C. § 2254 on January 23, 2012. Because
this
is
after
the
effective
date
for
the
Antiterrorism
and
Effective Death Penalty Act of 1996 (“AEDPA”), applicable to habeas
corpus petitions, the instant application 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)).
3
The AEDPA restricts the time-period for filing a federal
habeas corpus action to one year from the date a conviction became
final. 28 U.S.C. § 2244(d)(1) (2006); Duncan v. Walker, 533 U.S.
167, 179 (2001). As noted above, Petitioner’s conviction became
final on April 16, 2002.2 (Rec. Doc. No. 14 at 5).
A. Timeliness of Habeas Petition
The
Magistrate
Judge
did
not
consider
the
merits
of
Petitioner’s claims, because Petitioner did not timely file her
federal habeas application. (Rec. Doc. No. 14 at 1). Under §
2244(d)(1)(A), a petitioner must bring her federal habeas claim
within one year of the date her conviction became final. Duncan,
533 U.S. at 179.
In the instant case, the AEDPA’s one-year filing period
commenced on April 16, 2002.3 (Rec. Doc. No. 14 at 5). Accordingly,
Petitioner’s federal limitations period for filing her habeas claim
expired on April 16, 2003, unless that period was extended by
3
According to 28 U.S.C. § 2244(d)(1), a conviction is final on “the date
. . . the judgment became final by conclusion of direct review or the expiration
of the time for seeking such review.” 28 U.S.C. § 2244(d)(1) (2006); see also,
Foreman v. Dretke, 383 F.3d 336, 338 (5th Cir. 2004) (“This provision supplies
two alternate methods under which a conviction can become final: direct review
can end or the time to pursue the direct review can expire.”).
4
Petitioner pleaded guilty and was sentenced on April 9, 2002. As the
Magistrate Judge noted, in 2002, LA. CODE CRIM. PROC. ANN. arts. 13 and 914 allowed
a defendant five days, excluding legal holidays and half-holidays, to give notice
of her intent to appeal a conviction or sentence. In Louisiana, Sundays are legal
holidays and Saturdays, depending on the locality, are either holidays or halfholidays. LA. REV. STAT. ANN. § 1:55(A).
4
statutory or equitable tolling.
28 U.S.C. § 2244(d)(1) (2006);
Holland v. Florida, 130 S. Ct. 2549, 2560 (2010).
1. Statutory Tolling
Section 2244(d)(2) provides that “[t]he time during which a
properly filed application for State 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)).
Specifically, an application is considered properly filed
“when it is delivered to, and accepted by” the court, and placed
into the official record. Artuz, 531 U.S. at 8. The Supreme Court
has also clarified that examples of “other collateral review” might
include civil commitment or civil contempt orders. Duncan, 533 U.S.
at 176. Further, the phrase “pertinent judgment or claim” requires
that the Petitioner’s state filings must have challenged the same
conviction being challenged in the federal habeas petition; the
state filings must also have addressed the same substantive claim.
Godfrey v. Dretke, 396 F.3d 681, 687-88 (5th Cir. 2005).
5
In the instant case, Petitioner did not properly file any
applications for state post-conviction relief or other collateral
review within the one-year limitation period under the AEDPA. (Rec.
Doc. No. 14 at 6). Petitioner’s motion for appeal was denied by the
state district court as untimely, so it cannot be considered
properly filed. (Rec. Doc. No. 14 at 2); Pace v. DiGuglielmo, 544
U.S. 408, 414 (2005) (“When a post [] conviction petition is
untimely under state law, that is the end of the matter for
purposes of § 2244(d)(2).”) (internal citations omitted); Butler v.
Cain, 533 F.3d 314, 317 (5th Cir. 2008).
The only other application Petitioner filed during the oneyear limitation period was a Motion to Compel Production of Public
Records, which was denied on June 18, 2002. (Rec. Doc. No. 14 at
7). However, that motion cannot be considered “other collateral
review” and does not trigger statutory tolling, because it did not
directly challenge the validity of Petitioner’s sentence. Noble v.
Cooper, No. 11-2866, 2012 WL 1135867, at *2 (E.D. La. March 20,
2012). Thus, Petitioner is not entitled to statutory tolling, as
she had no properly filed state applications pending prior to April
16, 2003.4 (Rec. Doc. No. 14 at 8).
5
The Magistrate Judge also noted that Petitioner filed multiple postconviction applications and motions after April 16, 2003. (Rec. Doc. No. 14 at
8). Nevertheless, 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).
6
2. Equitable Tolling
The Court must next consider whether Petitioner is entitled to
equitable tolling. See Holland, 130 S. Ct. at 2560. Equitable
tolling is only warranted where: (1) the petitioner has diligently
pursued her rights, and (2) some extraordinary circumstance stood
in her way. Pace, 544 U.S. at 418; Schmitt v. Zeller, 354 Fed.
Appx. 950, 951 (5th Cir. 2009) (internal citations omitted).
In the instant case, Petitioner has not proven the elements
necessary for equitable tolling to be applicable to her claims.
First, the nearly ten-year lapse in time during which Petitioner
did not seek to file a federal habeas petition demonstrates a lack
of diligence in asserting her rights. See Pace, 544 U.S. at 419
(holding
that
a
petitioner’s
“lack
of
diligence
preclude[d]
equity’s operation” where the “petitioner waited years . . . to
assert th[o]se claims.”).
Second, although unclear, Petitioner seems to assert that her
application should be considered timely because she filed a state
petition
for
relief
following
the
Louisiana
Supreme
Court’s
decision in Cordero. (Rec. Doc. No. 15 at 4-5). However, Petitioner
allowed more than one year to pass well before Cordero was decided.
Jones v. Tanner, No. 11-1721, 2012 WL 1899402, at *4 (E.D. La. May
24, 2012); Nellon v. Cain, No. 10-4430, 2012 WL 1142539, at *5
(E.D. La. Jan. 25, 2012) (“Where, as here, a petitioner’s federal
7
limitations period expired prior to Cordero, the additional review
. . . is simply irrelevant.”). Any additional review accorded to
Petitioner pursuant to Cordero is not a basis for statutory or
equitable tolling. Because Petitioner did not file her application
by April 16, 2003,5 “and because [she] is not entitled to statutory
or equitable tolling, her federal petition is barred by the statute
of limitations.” Pace, 544 U.S. at 419.
New Orleans, Louisiana, this 2ND day of August, 2012.
______________________________
UNITED STATES DISTRICT JUDGE
6
Out of caution, the Magistrate Judge noted that even if Petitioner’s
application was timely filed, she would still not be entitled to federal habeas
corpus relief. (Rec. Doc. No. 14 at 10). Petitioner claims in her federal
application only that the Louisiana Fifth Circuit Court of Appeal used improper
procedures initially to review her post-conviction application. Id. However,
“infirmities in state habeas proceedings do not constitute grounds for relief in
federal court.” Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997).
8
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