Moses v. Cain et al

Filing 24

ORDER that Petitioners objections are OVERRULED; FURTHER ORDER ADOPTING REPORT AND RECOMMENDATIONS 20 and Petitioner Larry Mosess petition for issuance of a writ of habeas corpus, pursuant to 28 U.S.C. 2254 is DENIED and DISMISSED WITH PREJUDICE. Signed by Judge Nannette Jolivette Brown on 1/21/2015. (NEF: MAG-5)(caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LARRY MOSES

CIVIL ACTION

VERSUS

NO. 13-821

N. BURL CAIN, WARDEN

SECTION “G”(5)
ORDER

Before the Court are Petitioner Larry Moses’s (“Petitioner”) objections1 to the May 21, 2014
Report and Recommendation of the United States Magistrate Judge assigned to the case.2 Petitioner,
a state prisoner incarcerated at the Louisiana State Penitentiary, Angola, Louisiana, filed a petition
for Writ of Habeas Corpus under 28 U.S.C. § 2254.3 The Magistrate Judge recommended that the
matter be dismissed with prejudice as time-barred.4 Petitioner objects, arguing he is entitled to
equitable tolling.5 After reviewing the petition, the Magistrate Judge’s Report and Recommendation,
the objections, the record and the applicable law, the Court will overrule Petitioner’s objections,
adopt the Magistrate Judge’s recommendation and dismiss this action with prejudice.
I. Background
A. Factual Background
On August 18, 1994, Petitioner was indicted for two counts of first degree murder.6 On
October 31, 1995, a jury in the Orleans Parish Criminal District Court found Petitioner guilty as

1

Rec. Doc. 21.

2

Rec. Doc. 20.

3

Rec. Doc. 1.

4

Rec. Doc. 20 at 12.

5

Rec. Doc. 21.

6

State Rec. Vol. II of IV, Indictment 8/18/94.

charged.7 On November 20, 1995, the court sentenced Petitioner to life imprisonment as to each
count without benefit of parole, probation or suspension of sentence.8
On October 1, 1997, the Louisiana Fourth Circuit Court of Appeal affirmed Petitioner’s
convictions and sentences. 9 The Louisiana Supreme Court denied Petitioner’s writ application on
May 8, 1998.10 Petitioner’s conviction became final ninety days later on August 6, 1998, when he
did not file a writ application with the United States Supreme Court.11
On January 26, 2000, Petitioner’s counsel filed an application for post-conviction relief with
the state district court.12 On October 12, 2001, Petitioner filed a writ of mandamus requesting an
order from the court of appeal directing the district court to rule on his post-conviction relief
application, which the court of appeal denied on November 21, 2001.13 On or about March 22, 2002,
counsel for Petitioner filed another application for post-conviction relief in the state district court,14
which the state district court denied on July 26, 2002.15 On December 13, 2002, the court of appeal
denied Petitioner’s related writ application, finding the application untimely and repetitive.16 On

7

State Rec. Vol. III of IV, Minute Entry 10/31/95.

8

State Rec. Vol. III of IV, Master Docket 11/20/95.

9

State v. Moses, 97-641 (La. App. 4th Cir. 10/1/97). State Rec. Vol. III of IV.

10

State v. Moses, 97-3016 (La. 5/8/98); 718 So. 2d 427. State Rec. Vol. III of IV.

11

See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003) (citing 28 U.S.C. §2244(d)(1)(a)).

12

State Rec. Vol. II of IV, Application 1/26/00.

13

State v. Moses, 01-1914 (La. App. 4th Cir. 11/21/01). State Rec. Vol. II of IV.

14

State Rec. Vol. II of IV, Application 3/22/02.

15

State Rec. Vol. II of IV, Minute Entry 7/26/02.

16

State v. Moses, 02-2375 (La. App. 4th Cir. 12/13/02). State Rec. Vol. II of IV.

2

November 7, 2003, the Louisiana Supreme Court denied Petitioner’s related writ application without
stated reasons.17
On November 4, 2004, Petitioner filed a third application for post-conviction relief with the
state district court.18 Petitioner filed another writ of mandamus requesting an order from the court
of appeal directing the district court to rule on his post-conviction relief application, which the court
of appeal denied on March 1, 2005.19 On February 3, 2006, the Louisiana Supreme Court denied
Petitioner’s related writ application as untimely and repetitive.20
On March 19, 2013, Petitioner filed the instant petition for federal habeas relief with this
Court.21 On July 29, 2013, the State filed a response, arguing that Petitioner’s application is
untimely.22 Petitioner conceded that his application was untimely filed, but argued that he was
entitled to equitable tolling because of his retained counsel’s ineffective assistance on state postconviction review.23
B. Report and Recommendation
On May 21, 2014, the Magistrate Judge recommended that Petitioner’s claim be dismissed

17

State v. Moses, 03-153 (La. 11/7/03), 857 So. 2d 514. State Rec. Vol. IV of IV.

18

State Rec. Vol. II of XVIII, Judgment 10/7/11.

19

State v. Moses, 05-155 (La. App. 4th Cir. 3/1/05). State Rec. Vol. II of IV.

20

State ex. rel. Moses v. State, 05-1194 (La. 2/3/06), 922 So. 2d 1169.

21

Rec. Doc. 1.

22

Rec. Doc. 17.

23

Rec. Doc. 18.

3

with prejudice as time-barred.24 The Magistrate Judge found that Petitioner failed to file his petition
within the time limitations period set forth in the Anti-Terrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), which establishes a one-year statute of limitations for the filing of habeas
corpus applications after the underlying judgment becomes “final.”25 The Magistrate Judge found
that Petitioner’s judgement became final on August 6, 1998, when the time elapsed for filing a writ
of certiorari with the United States Supreme Court.26
The Magistrate Judge determined that Petitioner was not entitled to statutory tolling under
28 U.S.C. § 2244(d)(2), which provides statutory tolling for “the time during which a properly filed
application for State post-conviction or other collateral review with respect to the pertinent judgment
or claim is pending.”27 The Magistrate Judge noted that Petitioner did not file a post-conviction
application with the state district court until January 26, 2000, more than five months after the oneyear limitations period had expired.28 Accordingly, the Magistrate Judge found statutory tolling
inapplicable.29
The Magistrate Judge also considered Petitioner’s entitlement to equitable tolling.30
Petitioner argued his attorney, who was hired in June 1998 to represent him in state collateral review

24

Rec. Doc. 20 at 12.

25

Id. at 5.

26

Id.

27

Id.

28

Id. at 6.

29

Id. (citing Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000)).

30

Id.

4

proceedings, did not file his state post-conviction application timely.31 Petitioner presented three
letters he sent to his attorney allegedly evidencing his concern as to the filing of his writ
application.32 The Magistrate Judge found that only one of those letters, dated October 27, 1999,
addressed the limitations period.33 He noted that this letter was sent to the attorney after the federal
limitations period had run.34 He noted that counsel forwarded Petitioner the writ application on
January 5, 2000, within two months of Petitioner’s request, which the Magistrate Judge opined
suggested that his attorney did not ignore the concerns raised by Petitioner.35 However, the
Magistrate Judge found the manner in which counsel responded to Petitioner’s concerns of no
moment because those concerns were not raised for the first time until after the federal limitations
period had already run.36
Petitioner also argued that his attorney made false and misleading assurances to both his
sister and father.37 The Magistrate Judge found that Petitioner failed to provide any objective
evidence to show that his family members contacted the attorney or that his attorney made the
purported assurances.38 Further, the Magistrate Judge found that even if Petitioner had satisfied the
“extraordinary circumstances” prong, he had not established the requisite diligence in pursuing

31

Id. at 7.

32

Id. at 8.

33

Id.

34

Id.

35

Id.

36

Id.

37

Id. at 9.

38

Id.

5

federal habeas relief.39 The Magistrate Judge found that “even if petitioner was reasonably diligent
in his attempts to have his attorney file his state post-conviction application so as to toll the
limitations period, he offers no explanation for his failure to file his federal habeas application
within the one-year deadline.”40 The Magistrate Judge noted that Petitioner’s October 1999 letter
detailed his knowledge of the following: his application for a writ of certiorari had been denied by
the Louisiana Supreme Court, his conviction had become final, the AEDPA statute of limitations
and one-year deadline.41 However, Petitioner waited over 13 years from the date his conviction
became final to file his federal habeas petition.42 Finally, the Magistrate Judge found that even if the
limitations period had been tolled during the entire duration of the state post-conviction proceedings,
no state court matter was pending after February 3, 2006, seven years before Petitioner filed his
federal application.43 Therefore, the Magistrate Judge found that Petitioner’s delay in seeking federal
habeas review of his conviction did not satisfy the due diligence standard according to federal
precedent.44 Accordingly, the Magistrate Judge recommended that Petitioner’s writ of habeas corpus
be dismissed with prejudice as time-barred.45

39

Id. at 9–10.

40

Id. at 10.

41

Id. at 11.

42

Id.

43

Id.

44

Id. (citing Manning v. Epps, 688 F.3d 177, 186–87 (5th Cir. 2012); Wickware v. Thaler, 404 F. App’x 856,
861–62 (5th Cir. 2010); Tsolainos v. Cain, 540 F. App’x 394 (5th Cir. 2013)).
45

Id. at 12.

6

II. Objections
A. Petitioner’s Objections
On June 5, 2014, Petitioner timely filed his objections to the Magistrate Judge’s Report and
Recommendation.46 Petitioner argues that he did not receive adequate assistance of counsel during
his state post-conviction relief proceedings. Petitioner argues that he could not file his petition until
2013, when he became aware of the United States Supreme Court’s decisions in Martinez v. Ryan
and Maples v. Thomas.47 He contends that his case is similar to Martinez v. Ryan because “an
attorney’s ignorance or inadvertence to a post conviction proceeding does not qualify as cause to
excuse a procedural default.”48 He argues that the Supreme Court in Maples v. Thomas found that
“[a] markedly different situation is presented, however, when an attorney abandons his client
without notice, and thereby occasions the default.”49 Petitioner asserts that he hired an attorney to
prepare his post-conviction relief application on June 26, 1998, but the attorney did not complete
the application until January 5, 2000.50 He contends that he “consistently wrote letters” to the
attorney regarding “the time limitations.”51 He also notes that his family contacted the attorney, and
he filed a complaint against the attorney with the disciplinary board.52

46

Rec. Doc. 21.

47

Id. at 2.

48

Id. at 2–3 (citing 132 S. Ct. 1309 (2012)).

49

Id. at 3 (citing 132 S. Ct. 912 (2012)).

50

Id.

51

Id.

52

Id.

7

B. State’s Response
The State of Louisiana did not file a brief in opposition to Petitioner’s objection despite
receiving electronic notice of the filing on June 5, 2014.
III. Standard of Review
In accordance with Local Rule 73.2, this case was referred to the Magistrate Judge to provide
a Report and Recommendation. A District Judge “may accept, reject, or modify the recommended
disposition” of a Magistrate Judge on a dispositive matter.53 The District Judge must “determine de
novo any part of the [Report and Recommendation] that has been properly objected to.”54 A District
Court’s review is limited to plain error of parts of the report which are not properly objected to.55
IV. Law and Analysis
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a oneyear statute of limitations for the filing of habeas corpus applications.56 28 U.S.C. § 2244(d)(1)
creates four different methods for calculating when the statute of limitations begins to run.57 Two
53

FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

54

Id.

55

See Douglas v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute
on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).
56
57

28 U.S.C. § 2244(d).
28 U.S.C. §2244(d) provides:
(1) A 1–year period of limitation shall apply to an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court. The limitation period shall run from the latest
of—
(A) the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or

8

of those methods could be applicable here. Subsection A provides a one-year period of limitations
after the underlying judgment becomes “final.”58 Subsection C provides a one year period of
limitation after “the date on which the constitutional right asserted was initially recognized by the
Supreme Court.”59
In his objection to the Report and Recommendation, Petitioner argues that he could not file
his petition until 2013, when he became aware of the United States Supreme Court’s decisions in
Martinez v. Ryan60 and Maples v. Thomas.61 Petitioner appears to argue that Subsection C should
be used in calculating the statute of limitations. Neither Martinez v. Ryan nor Maples v. Thomas
established a new constitutional right.62 Accordingly, the Court finds that Subsection C does not
apply in determining the statute of limitations applicable here.
With respect to the limitations period found at Subsection A, the United States Fifth Circuit
Court of Appeal has explained:
When a habeas petitioner has pursued relief on direct appeal through his
state’s highest court, his conviction becomes final ninety days after the highest
(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
58

28 U.S.C. § 2244(d)(1)(A).

59

28 U.S.C. § 2244(d)(1)(C).

60

––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) (holding that inadequate assistance of counsel at
initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective
assistance at trial).
61

––– U.S. ––––, 132 S.Ct. 912 (2012) (holding that post-conviction counsels’ abandonment could provide cause to
excuse a petitioner’s procedural default).
62

See Chavez v. Sec., Florida Dept. of Corrections, 742 F.3d 940, 946 (11th Cir. 2014) (Martinez v. Ryan did not
announce a new rule of constitutional law, and thus did not apply retroactively to trigger new deadline for seeking
federal habeas relief under Subsection C.); see also Day v. Ryan, Case no. 13-952 (D. Ariz. Mar. 17, 2014), 2014
WL 1017919 *5. (“Maples did not establish a new constitutional right, but simply acknowledged that for purposes of
finding cause and prejudice to excuse a procedural default, a petitioner is not charged with the conduct of an attorney
who abandons the representation without notice.”).

9

court’s judgment is entered, upon the expiration of time for filing an application
for writ of certiorari with the United States Supreme Court. However, “[i]f the
defendant stops the appeal process before that point,” . . . “the conviction
becomes final when the time for seeking further direct review in the state court
expires.”
Although federal, not state, law determines when a judgment is final for
federal habeas purposes, a necessary part of the finality inquiry is determining
whether the petitioner is still able to seek further direct review. As a result, this
court looks to state law in determining how long a prisoner has to file a direct
appeal. Louisiana Supreme Court Rule X, § 5(a) states that an application “to
review a judgment of the court of appeal either after an appeal to that court. . .or
after a denial of an application, shall be made within thirty days of the mailing of
the notice of the original judgment of the court of appeal.”63
On August 6, 1998, Petitioner’s conviction became final when he did not file a writ application with
the United States Supreme Court within the ninety-day appeal period.64 Therefore, Petitioner had
until August 6, 1999, to file his federal habeas petition under Subsection A, unless that deadline was
extended through tolling.
A. Statutory Tolling
The AEDPA expressly provides statutory tolling for “[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 is pending.”65 “[A]n application is ‘properly filed’ when its delivery and acceptance are in
compliance with the applicable laws and rules governing filings. These usually prescribe, for
example, the form of the document, the time limits upon its delivery, the court and office in which
it must be lodged, and the requisite filing fee.”66

63

Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (citations omitted).

64

Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003) (citing 28 U.S.C. § 2244(d)(1)(a)).

65

28 U.S.C. § 2244(d)(2).

66

Artuz v. Bennett, 531 U.S. 4, 8 (2000) (footnote omitted).

10

The Magistrate Judge determined that Petitioner was not entitled to statutory tolling because
Petitioner did not file a post-conviction application with the state district court until January 26,
2000, more than five months after the one-year limitations period had expired. Petitioner does not
object to this finding. A state habeas application will not toll the limitation period where it was not
filed until after the period of limitation expired.67 Accordingly, the Court finds no plain error and
adopts the Magistrate Judge’s finding that Petitioner’s state habeas application did not toll the
limitation period because it was not filed until after the period of limitation had expired.
B. Equitable Tolling
The United States Supreme Court has expressly held that the AEDPA’s limitation period is
subject to equitable tolling.68 However, “a petitioner is entitled to equitable tolling only if he shows
(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.”69 A petitioner bears the burden of proof to establish
entitlement to equitable tolling and “must demonstrate rare and exceptional circumstances
warranting application of the doctrine.”70
Petitioner objects to the Magistrate Judge’s finding that he is not entitled to equitable tolling.
Petitioner argues that he did not receive adequate assistance of counsel during his state postconviction relief proceedings. Petitioner asserts that he hired an attorney to prepare his post-

67

See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).

68

Holland v. Florida, 130 S.Ct. 2549, 2560 (2010).

69

Id. at 2562 (internal quotation marks omitted).

70

Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002). The Fifth Circuit noted, “[t]he doctrine will not be
applied where the applicant failed to diligently pursue habeas corpus relief under § 2254, and ignorance of the law,
even for an incarcerated pro se petitioner, generally does not excuse prompt filing.” Id. (internal quotation marks
omitted).

11

conviction relief application on June 26, 1998, but the attorney did not complete the application until
January 5, 2000. He contends that he “consistently wrote letters” to the attorney regarding “the time
limitations.”
As the Magistrate Judge noted in the Report and Recommendation, Petitioner presented three
letters that he sent to his attorney allegedly evidencing his concern as to the filing of his writ
application.71 Only one of those letters, dated October 27, 1999, addressed the limitations period.72
This letter was sent to the attorney after the federal limitations period had run.73 Further, counsel
forwarded Petitioner the writ application on January 5, 2000, within two months of Petitioner’s
request.74 Petitioner’s October 1999 letter detailed his knowledge of the AEDPA statute of
limitations.75
“A petitioner’s failure to satisfy the statute of limitations must result from external factors
beyond his control; delays of the petitioner’s own making do not qualify.”76 Generally, equitable
tolling applies where a petitioner was actively misled by the state or his counsel about his petition
or when some extraordinary obstacle prevents him from asserting his rights.77 “[A]ttorney

71

Rec. Doc. 1-1 at 86–89.

72

Id. at 88.

73

Id.

74

Id.

75

Id. at 11.

76

In re Wilson, 442 F.3d 872, 875 (5th Cir. 2006) (citing Felder v. Johnson, 204 F.3d 168, 174 (5th Cir. 2000)).

77

Lookingbill v. Cockrell, 293 F.3d 256, 264 (5th Cir. 2002) (citing Rashidi v. Am President Lines, 96 F.3d 124, 128
(5th Cir. 1996).

12

abandonment can qualify as an extraordinary circumstance for equitable tolling purposes.”78 In
Hardy v. Quarterman, the Fifth Circuit found that equitable tolling was warranted when the
petitioner’s counsel ignored his client’s request to timely file a federal petition and failed to
communicate with his client over a period of years, despite the client’s numerous letters.79 In United
States v. Wynn, where the Fifth Circuit determined that equitable tolling was warranted when a
petitioner’s attorney deceived the petitioner by telling him that he timely filed his federal habeas
petition.80
Here, Petitioner does not allege that he was actively misled or that some extraordinary
obstacle prevented him from asserting his rights. He does not allege that his attorney abandoned his
claim. Petitioner was aware of the statute of limitations, as evidenced by his October 1999 letter to
his attorney. He argues that his attorney failed to timely file the application, but he offers no
explanation for his failure to file the federal application himself.
Further, even assuming that Petitioner has established extraordinary circumstances prevented
timely filing, courts will “invoke equitable tolling only when petitioners demonstrate that they have
acted with due diligence.”81 Petitioner did not file his federal application until March 19, 2013, more
than thirteen years after his conviction became final and almost seven years after his last state postconviction relief application was dismissed by the Louisiana Supreme Court. Such an extended
delay in pursing his rights falls far short of the diligence required to support a bid for equitable
78

Manning v. Epps, 688 F.3d 177, 181 (5th Cir. 2012) (citing Maples, 132 S.Ct. at 924).

79

577 F.3d 596, 599–600 (5th Cir. 2009).

80

292 F.3d 226, 230 (5th Cir. 2002).

81

Manning, 688 F.3d at 184.

13

tolling.82 Petitioner argues that he could not file his petition until 2013, when he became aware of
the United States Supreme Court’s decisions in Martinez v. Ryan and Maples v. Thomas. However,
as discussed above, neither Martinez v. Ryan nor Maples v. Thomas established a new constitutional
right, making the statute of limitations under 28 U.S.C. § 2244(d)(1)(C) inapplicable here.
Accordingly, on de novo review, this Court finds that Petitioner’s reasons for his untimely filing do
not constitute “extraordinary circumstances” entitling him to equitable tolling. Because Petitioner
is not entitled to equitable tolling, his federal application for habeas corpus relief had to be filed on
or before August 6, 1999, in order to be timely. His federal application was filed on March 19, 2013,
and it is therefore untimely.

82

See, e.g., Manning, 688 F.3d at 186–87 (no equitable tolling when prisoner made no filings until nineteen months
after his conviction became final); Lann v. Dretke, 111 F. App’x 236, 237 (5th Cir. 2004) (no equitable tolling when
prisoner waited five months after denial of relief in state court before filing a federal petition); Melancon v. Kaylo,
259 F.3d 401, 408 (5th Cir. 2001) (no equitable tolling when prisoner waited four months after denial of relief in
state court before filing a federal petition); Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) (no equitable
tolling when prisoner waited six months after receiving notice of the denial of state relief before filing a federal
petition).

14

V. Conclusion
For the reasons stated above,
IT IS HEREBY ORDERED that Petitioner’s objections are OVERRULED;
IT IS FURTHER ORDERED that the Court ADOPTS the Magistrate Judge's
recommendation and Petitioner Larry Moses’s petition for issuance of a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254 is DENIED and DISMISSED WITH PREJUDICE.
NEW ORLEANS, LOUISIANA, this ________ day of January, 2015.
21st

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

15