Brewer v. Cain et al

Filing 19

ORDER AND REASONS: Ordered that petitioner's 18 Objection to 17 Report and Recommendations is Overruled; the Magistrate Judge's Report and Recommendations is Adopted, and petitioner's 1 Petition for Writ of Habeas Corpus (28:2254) is Dismissed with Prejudice. Signed by Judge Ivan L.R. Lemelle on 12/18/2014.(ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KEITH BREWER

CIVIL ACTION

VERSUS

CASE NO.12-2814

N. BURL CAIN, WARDEN

SECTION “B”(3)

ORDER AND REASONS
Before

the

Court

is

Keith

Brewer’s

(“Petitioner”)

petition

under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
Custody.1

State

The

State

of

Louisiana

filed

response.2

a

The

Magistrate Judge has issued a Report and Recommendation, wherein the
Magistrate Judge agreed with the state, and recommended that the
petition be dismissed with prejudice as untimely pursuant to 28
U.S.C.

2244(d).3

§

Petitioner

filed

a

timely

objection

to

the

Magistrate Judge’s Report and Recommendation.4
Accordingly and for the reasons enumerated below,
IT IS ORDERED that Petitioner’s Objection to the Magistrate
Judge’s Report and Recommendation is OVERRULED; that the Magistrate
Judge’s

Report

petition

for

and

Recommendation

federal

habeas

is

corpus

ADOPTED;
review

and,
is

Petitioner’s

DISMISSED

WITH

PREJUDICE.

1

Rec. Doc. No. 1.
Rec. Doc. No. 13.
3
Rec. Doc. No. 17.
4
Rec. Doc. No. 18.
2

1

Petitioner is a state prisoner incarcerated at the Louisiana
State

Penitentiary,

Angola,

Louisiana.5

On

January

24,

2007,

Petitioner was convicted of aggravated burglary under Louisiana law.6
On June 8, 2007, he was found to be a habitual offender and was
sentenced as such to a term of fifty years imprisonment.7
In

November

of

2012,

Petitioner

filed

the

instant

federal

application seeking habeas corpus relief.8 The state argues that
Petitioner’s federal application is untimely.9 The Magistrate Judge
agreed.10
instant

Petitioner
habeas

objects

petition

as

and

contends

time-barred,

that,

“[t]he

in

denying

Magistrate

the

Judge,

however, disregards the fact that Mr. Brewer filed a Motion for
Extension of Time in which the Louisiana Supreme Court granted and
advised Mr. Brewer “[y]ou should send your application as soon as
you

are

able,

preferably

within

60

days

from

the

date

of

this

letter.”11
I.

Law and Analysis
The Court now conducts the requisite de novo review of the

aspects of the recommendation to which Petitioner objects. 28 U.S.C.
§ 636(b)(1)(C); see also Fed. R. Civ. P. 72(b).
5

Rec. Doc. No. 17 at 1.
State Rec., Vol. VII of VII, transcript of January 24, 2007, p. 105, p. 105; State Rec., Vol. I. of VII, minute entry dated
January 24, 2007.
7
State Rec., Vol. II of VII, transcript of June 8, 2007; State Rec., Vol. I of VII, minute entry dated June 8, 2007.
8
Rec. Doc. No. 1.
9
Rec. Doc. No. 13.
10
Rec. Doc. No. 17.
11
Rec. Doc. No. 18 at 1.
6

2

Statute of Limitations
The

Antiterrorism

and

Effective

Death

Penalty

Act

of

1996

(“AEDPA”), codified as amended at 28 U.S.C. § 2244(d), provides that
a petitioner has one year within which to bring his habeas corpus
claims pursuant to 28 U.S.C. § 2254, with this one year period
commencing

to

run

from

the

“latest

of”

either

the

date

the

petitioner’s state judgment became final or the expiration of the
time for seeking review. See 28 U.S.C. § 2244(D)(1)(A)(West 2013),
as amended by the AEDPA, P.L. 104-132, 110 Stat. 1220.
The statute of limitations does not run while a petitioner has
a

pending

application

for

state

post-conviction

relief

or

other

collateral review. 28 U.S.C. § 2244(d)(2). AEDPA does not, however,
provide a new and full one-year statute of limitations once these
applications are no longer pending. Flanagan v. Johnson, 154 F.3d
196, 198 (5th Cir.1998).
In this case, Petitioner was resentenced by the state district
court on April 23, 2010.12 Petitioner had “thirty days after the
rendition of the judgment” to file a motion for an appeal. La. Code
Crim.

P.

art.

914(B)(1).

This

period

expired,

and

Petitioner’s

sentence became final on May 24, 2010. State v. Mims, 942 So.2d 70,
2006-1219

(La.

App.

3

Cir.

11/2/06).

Therefore,

the

limitations

period began May 24, 2010.
12

State Rec., Vol I of VII, minute entry dated April 23, 2010.

3

The one-year federal limitations period under the AEDPA was
tolled, after two hundred and thirty two days, by the filing of a
post-conviction application with the state district court on January
12, 2011. 28 U.S.C. § 2244(d)((2). The application was denied on
June 22, 2011.13 Petitioner had thirty days, under Louisiana law, to
seek

review

Louisiana

by

the

Uniform

Louisiana

Rules

of

Fourth

the

Circuit

Courts

of

Court
Appeal,

of

Appeal.

Rule

4-3.

Petitioner failed to file a writ application with that court, and
the one-year federal limitations period resumed on July 22, 2011,
unless further interrupted.14 Melancon v. Kaylo, 259 F.3d 401, 406-07
(5th Cir. 2001).
While that application was pending, Petitioner also filed a
motion to quash with the state district court on February 8, 2011.15
The state district court denied that motion on March 14, 2011.16
Subsequently, Petitioner’s related writ application was denied by
the Louisiana Fourth Circuit Court of Appeal on May 13, 2011.17
Petitioner did not file an application for supervisory writs
concerning the motion to quash before the Louisiana Supreme Court
within that court’s thirty day limit. Louisiana Supreme Court Rule
X, § 5(a). On June 24, 2011, Petitioner filed a motion for extension
13

Rec. Doc. No. 1 at 51.
Rec. Doc. No. 1 at 19-20.
15
Rec. Doc. No. 1 at 19-20. On March 14, 2011, the trial court denied the petition for post-conviction relief. State Rec.
Vol. V of VII, Judgment dated March 14, 2011.
16
Rec. Doc. No. 1 at 19-20.
17
Rec. Doc. No. 1 at 19-20.
14

4

of

time

to

file

supervisory

writs

before

the

Louisiana

Supreme

Court.18 On September 14, 2012, the Louisiana Supreme Court denied
Petitioner’s application in a one-word order.19 Petitioner filed the
instant habeas petition in November of 2012.
The point of contention here is the application for supervisory
writs concerning the motion to quash, and whether the motion for
extension of time served to further interrupt or toll the federal
limitations

period.

“Any

tolling

resulting

from

the

motion

[to

quash] continued only so long as the motion remained pending. It is
clear

that

a

post-conviction

filing

remains

pending

during

any

supervisory review of that motion, but only if petitioner sought
supervisory review in a timely manner.”20 Grillette v. Warden, Winn
Correctional Center, 372 F.3d 765, 771 (5th Cir. 2004).
The

Magistrate

concluded

that

no

Judge

tolling

considered
resulted

the

from

issue

and

Petitioner’s

correctly
application

before the Louisiana Supreme Court.21 First, Petitioner failed to
timely submit an application before the Louisiana Supreme Court.
Second, Petitioner’s June 24, 2011 motion for extension of time was
untimely. Petitioner’s post-conviction claims were completed on June
13, 2011, thirty days after the Louisiana Fourth Circuit denied
review

of

Petitioner’s

post-conviction

application.

Petitioner

18

State Rec., Vol. VI of VII.
State ex. Rel. Brewer v. State, 97 So.3d 1010 (La.2012).
20
Rec. Doc. No. 17 at 6.
21
Rec. Doc. No. 17 at 6.
19

5

cannot avail himself of an untimely motion for extension. Lastly,
the Louisiana Supreme Court did not grant Petitioner an extension.22
II.

Conclusion
The Court has carefully considered the petition, the record,

the applicable law, the Report and Recommendation issued by the
assigned

Magistrate

Judge.23

Petitioner

has

failed

to

meet

the

threshold requirement that a 28 U.S.C. § 2254 habeas petition be
timely filed.
Accordingly,
IT

IS

ORDERED

that

Petitioner’s

Objection

to

the

Magistrate

Judge’s Report and Recommendation is OVERRULED; that the Magistrate
Judge’s

Report

petition

for

and

Recommendation

federal

habeas

is

corpus

ADOPTED;
review

and,
is

Petitioner’s

DISMISSED

WITH

PREJUDICE.
New Orleans, Louisiana, this 18th day of December, 2014.

____________________________
UNITED STATES DISTRICT JUDGE

22

State Rec., Vol. VI of VII, Letter to petitioner from Central Staff dated June 30, 2011. “Your request for an extension of
time has been filed and given the above number. You should send your application as soon as you are able, preferably
within 60 days from the date of this letter. Your application will be filed as a supplement to the filing under the above
number. The filing of your request for an extension and any supplemental application does not represent a finding by this
Court that your findings are or are not timely.”
23
Rec. Doc. No. 17 at 6-7.

6