Ficher v. Goodwin et al

Filing 27

ORDER AND REASONS ADOPTING REPORT AND RECOMMENDATIONS 14 - IT IS ORDERED that Petitioner Charles Ficher, Jr.'s petition against Respondent Jerry Goodwin be and hereby is DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan.(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHARLES J. FICHER, JR.

CIVIL ACTION

VERSUS

NO. 14-02281

JERRY GOODWIN, WARDEN,
DAVID WADE CORRECTIONAL
CENTER

SECTION "E"(5)

ORDER AND REASONS
Before the Court is a Report and Recommendation issued by Magistrate Judge
Michael B. North recommending Petitioner Charles Ficher, Jr.’s petition for federal
habeas corpus relief be dismissed with prejudice as time-barred. 1 Petitioner objected to
the Magistrate Judge’s Report and Recommendation. 2 For the reasons that follow, the
Court ADOPTS the Report and Recommendation as its own, and hereby DENIES
Petitioner’s application for relief.
BACKGROUND
Petitioner is an inmate currently incarcerated in the Dixon Correctional Institute
in Jackson, Louisiana. 3 In November 1992, he was indicted by an Orleans Parish grand
jury and charged with one count of second-degree murder. 4 On October 26, 1993, a jury
found him guilty of the charged count. 5 On November 9, 1993, his motion for new trial

R. Doc. 14.
R. Doc. 24.
3 R. Doc. 25.
4 State Rec., Vol. 1 of 3, Grand Jury Indictment. The indictment refers to defendant as Charles “Fisher.” The
state court record also includes the alternate spelling, “Fischer.” His federal court petition, however, is
styled Charles “Ficher.”
5 State Rec., Vol. 1 of 3, Minute Entry, 10/26/93.
1

2

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was denied and he was sentenced to life imprisonment without benefit of probation,
parole or suspension of sentence. 6
On direct appeal, Petitioner’s appointed counsel requested a review for only errors
patent and moved to withdraw. 7 Petitioner, pro se, filed a supplemental brief. 8 On
January 19, 1995, the Louisiana Fourth Circuit Court of Appeal affirmed his conviction
and sentence. 9 On June 16, 1995, the Louisiana Supreme Court denied his writ of
certiorari. 10 Petitioner did not seek a writ of certiorari from the United States Supreme
Court.11
On October 22, 1996, Petitioner filed his first application for post-conviction relief
with the state district court. 12 On March 9, 1998, the state district court rendered
judgment denying relief on the merits. 13 On May 28, 2003, Petitioner, having failed to
receive a ruling from the state district court, filed his first writ of mandamus with the
Louisiana Fourth Circuit Court of Appeal. 14 On June 23, 2003, the state appellate court
issued a decision on Petitioner’s pending post-conviction application, determining
Petitioner was not entitled to relief. 15 Petitioner then filed a writ application with the
Louisiana Supreme Court. On August 20, 2004, the Louisiana Supreme Court denied

State Rec., Vol. 1 of 3, Minute Entry, 11/9/93.
R. Doc. 14 at 2.
8 Id.
9 State v. Fisher, 94-KA-0191 (La. App. 4 Cir. 1995), 648 So.2d 52 (Table); see State Rec., Vol. 2 of 3.
10 State v. Fisher, 95-KO-0476 (La. 1995), 655 So.2d 341; State Rec., Vol. 2 of 3.
11 R. Doc. 14 at 2.
12 State Rec., Vol. 1 of 3, Uniform Application for Post-Conviction Relief. Petitioner’s application was signed
and notarized on October 22, 1996, which is presumably the earliest date he could have placed it in the
prison mail system. See Affidavit attached to PCR application; Causey v. Cain, 450 F.3d 601, 607 (5th Cir.
2006) (requiring federal habeas courts apply Louisiana’s mailbox rule to determine the filing date of a
Louisiana state court filing, which provides such a document is considered “filed” as of the moment the
prisoner “placed it in the prison mail system.”).
13 State Rec., Vol. 1 of 3, Judgment, 3/9/98.
14 R. Doc. 14 at 3.
15 State v. Ficher (Fisher), No. 2003-K-0964 (La. App. 4 Cir. 2003) (unpublished decision).
6
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Petitioner’s writ application. 16 In September 2004, Petitioner filed his second application
for writ of mandamus with the Louisiana Fourth Circuit Court of Appeal. 17 The Louisiana
Fourth Circuit denied Petitioner’s writ application “as repetitive.” 18 On August 19, 2005,
the Louisiana Supreme Court denied petitioner’s writ application as “moot.” 19
On October 6, 2005, Petitioner filed his first federal habeas corpus application with
this Court, asserting: (1) he was denied a fair trial due to prosecutorial misconduct; (2)
his conviction was based on insufficient evidence; (3) he received ineffective assistance of
counsel for failing to present witnesses on his behalf and to request a limiting instruction
regarding the use of prior inconsistent statements; and (4) the grand-jury indictment was
unconstitutionally obtained. 20 Because his federal petition contained both exhausted
claims (Nos. 2 and 3) and unexhausted claims (Nos. 1 and 4), the district court dismissed
the petition without prejudice for failure to exhaust state-court remedies on November
19, 2008. 21 Petitioner moved for a certificate of appealability (“C.O.A”), which the Fifth
Circuit Court of Appeals denied on October 6, 2009, explaining “the district court
correctly determined that Ficher’s petition was a ‘mixed petition’ for failure to exhaust
state remedies for his [claims nos. 1 and 4].” 22
On March 18, 2013, Petitioner filed a second application for post-conviction relief

State ex rel. Ficher v. State, No. 2003- KH-2071, 882 So.2d 564 (La. 2004).
R. Doc. 14 at 3.
18 State v. Ficher, No. 2004-K-1587 (La. App. 4 Cir. 2004) (unpublished decision).
19 State ex rel. Ficher v. State, No. 2004-KH-2820, 908 So.2d 663 (La. 2005).
20 R. Doc. 14 at 4.
21 Id.
22 See R. Doc. 23 (Order Denying Petitioner’s C.O.A. Motion) filed in Charles Ficher v. Burl Cain, Civ. Action
No. 05-6373 (E.D. La. 2005).
16
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with the state district court.23 On May 14, 2013, the state district court denied relief. 24 On
September 4, 2013, Petitioner submitted a related supervisory writ application to the
Louisiana Fourth Circuit Court of Appeal. 25 On October 3, 2013, the appellate court found
Petitioner’s claims time-barred under La. Code Crim. P. art. 930.8. 26 On October 22,
2013, Petitioner filed a supervisory writ application with the Louisiana Supreme Court. 27
On June 20, 2014, the Louisiana Supreme Court denied the application as untimely. 28
On September 24, 2014, Petitioner filed the instant federal petition for habeas
corpus relief, asserting: (1) he was denied a fair trial due to prosecutorial misconduct and
(2) ineffective assistance of trial counsel for failing to (a) present a witness, (b) request a
limiting instruction concerning proper use of prior inconsistent statements, and (c)
challenge the grand-jury indictment. 29 The Respondent filed a response, arguing the
petition should be dismissed as untimely. 30 Petitioner filed a reply. 31 On September 8,
2017, the magistrate judge issued a report and recommendation recommending the
petition be dismissed with prejudice as untimely. 32 On November 2, 2017, then-District
Court Judge Kurt Engelhardt issued an order adopting the report and recommendation 33
and entered judgment in favor of Respondent. 34 On November 27, 2017, the Court

23 State Rec., Vol. 3 of 3, Uniform Application for Post-Conviction Relief. The application contained in the
state-court record is undated. However, in his reply, Ficher submitted a copy of a withdrawal request slip
for funds dated March 18, 2013, which he claims reflects the date he mailed the PCR application to the state
district court. R. Doc. 13. The Court will adopt that date, which coincides with the State’s assertion that “at
some point in early 2013, he filed a new application for post-conviction relief.” R. Doc. 12 at 4.
24 State Rec., Vol. 3 of 3, District Court Judgment denying PCR signed May 14, 2013.
25 State Rec., Vol. 3 of 3, State v. Charles Fischer, Jr., 2013-K-1315 (La. App. 4 Cir. Oct. 3, 2013).
26 Id.
27 State ex rel. Charles Fischer, Jr. v. State, 2013-KH-2543 (La. 6/20/14), 141 So.3d 279.
28 Id.
29 R. Doc. 1.
30 R. Doc. 12.
31 R. Doc. 13.
32 R. Doc. 14.
33 R. Doc. 16.
34 R. Doc. 17.

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received a letter from Petitioner indicating he never received a copy of the magistrate
judge’s report and recommendation. 35 On November 29, 2017, the Court ordered
Petitioner would have until December 29, 2017 to file objections to the report and
recommendation. 36 Petitioner filed an objection on December 29, 2017. 37
ANALYSIS
I.

Standard of Review
In reviewing the magistrate judge’s Report and Recommendations, the Court must

conduct a de novo review of any of the magistrate judge’s conclusions to which a party has
specifically objected. 38 As to the portions of the report that are not objected to, the Court
needs only review those portions to determine whether they are clearly erroneous or
contrary to law. 39
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a
federal court must defer to the decision of the state court on the merits of a pure question
of law or a mixed question of law and fact unless that decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 40 A state court's decision is contrary to clearly
established federal law if: “(1) the state court applies a rule that contradicts the governing
law announced in Supreme Court cases, or (2) the state court decides a case differently
than the Supreme Court did on a set of materially indistinguishable facts.” 41 AEDPA

R. Doc. 21.
Id.
37 R. Doc. 24.
38 See 28 U.S.C. § 636(b)(1) (“[A] judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which an objection is made.”).
39 Id.
40 28 U.S.C. § 2254(d)(1).
41 Williams, 529 U.S. at 405–06.
35

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requires that a federal court “accord the state trial court substantial deference.” 42
II.

Statute of Limitations
The AEDPA provides “[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.” 43 The limitation period runs 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
(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence. 44
The one-year period of limitation may be tolled in certain situations. First, the
AEDPA statutorily allows the one-year limitations period to be interrupted in the
following regard: “[t]he time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of limitation under this subsection.” 45
Second, the one-year period of limitation may be equitably tolled in extraordinary
circumstances. 46 Third, a plea of actual innocence can overcome the AEDPA’s one-year
limitations for filing a habeas petition. 47

Brumfield v. Cain, 135 S. Ct. 2269 (2015).
28 U.S.C. § 2244(d)(1).
44 Id. § 2244(d)(1)(A)-(D) (emphasis added).
45 Id. § 2244(d)(2).
46 Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citing Irwin v. Dept. of Veterans Affairs, 498 U.S. 89,
96 (1990)).
47 McQuiggin v. Perkins, 569 U.S. 383, 392 (2013).
42
43

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Magistrate Judge North recommended this Court dismiss Petitioner’s petition as
untimely because Petitioner failed to file his federal habeas petition within the one-year
statute of limitations period. 48 This Court agrees with the magistrate judge’s
recommendation.
A.

One-Year Limitation Period

Generally, a petitioner must file his federal habeas petition within one year of the
date on which his underlying criminal judgment becomes “final.” 49 “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 court's judgment is entered, upon
the expiration of time for filing an application for writ of certiorari with the United States
Supreme Court.” 50 In this case, Petitioner’s state criminal judgment of conviction became
final on September 14, 1995 when the 90-day period for seeking a writ of certiorari from
the United States Supreme Court expired and Petitioner had not filed for relief. 51
However, because Petitioner’s conviction predated the enactment of the AEDPA,
Petitioner is entitled to a “grace period” of one year from the AEDPA’s date of enactment,
April 24, 1996. 52 Accordingly, the grace period expired on April 24, 1997. Because
Petitioner filed the instant federal habeas petition on September 24, 2014, his petition
was filed untimely unless the one-year statute of limitations was tolled or otherwise
interrupted.

R. Doc. 14.
28 U.S.C. § 2244(d)(1)(A).
50 Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (citing Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir.
2003)).
51 See Roberts, 319 F.3d at 693.
52 Grillette v. Warden, Winn Correctional Center, 372 F.3d 765, 768 (5th Cir. 2004) (citing Egerton v.
Cockrell, 334 F.3d 433, 435 (5th Cir. 2003)).
48
49

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B.

Statutory Tolling

Section 2244(d)(2) of the AEDPA provides 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” shall not be counted toward the one-year
limitation period. 53 Accordingly, the time during which Petitioner’s timely-filed statecourt collateral-review remained pending—from October 22, 1996 through August 19,
2005—is properly tolled under Section 2244(d)(2). After August 19, 2005, the first
application for post-conviction relief Petitioner filed was his first application for federal
habeas corpus review. However, an application for federal habeas corpus review is not an
“application for State post-conviction or other collateral review” within the meaning of
Section 2244(d)(2). 54 Therefore, Petitioner’s federal application filed on October 6, 2005
did not toll the one-year limitation period under the AEDPA.
The Report and Recommendation states: “Ficher did not file any other applications
for post-conviction relief or collateral review with the state district court until March
2013.” 55 Petitioner objects to this statement, arguing:
[O]n September 30th of 2009, In case no. 09-30014, Ficher v. Cain USDC No. 2:05cv-6373, under United States Circuit Judge Carolyn Dineen King, in the United
States Court of Appeals, Fifth Circuit, [Petitioner] was denied without prejudice
His request for a C.O.A. . . . Notwithstanding, Orleans Criminal Parish had
determined under [Rhines v. Weber, 544 U.S. 269 (2005)] that there was no good
cause for the Petitioner to exhaust his claims first in state court. Which in term,
created the complex circumstances whereas the Petitioner could not go forward
nor backwards (with his unexhausted claim!)[.] 56
The Court agrees with the magistrate judge. First, it appears Petitioner’s argument
is he was prevented from filing an application in state court after the federal district court
28 U.S.C. § 2244(d)(2).
Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
55 R. Doc. 14 at 9.
56 R. Doc. 24 at 4-5.
53

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dismissed his first federal application: to wit, because the state courts denied Petitioner’s
writ application filed in October 1996, and because he brought no new claims when he
filed his first federal habeas petition in October 2005, all of the claims in his first federal
application were exhausted. 57 However, as the district court held in 2008, Petitioner’s
federal application contained unexhausted claims. 58 The Fifth Circuit subsequently held
“the district court correctly determined Ficher’s petition was a ‘mixed petition’ for failure
to exhaust state remedies for his prosecutorial misconduct and unconstitutionally
empaneled grand jury claims.” 59 Petitioner was therefore not prevented from filing an
application in state court. Second, because Petitioner’s first federal application does not
constitute an “application for State post-conviction or other collateral review” within the
meaning of Section 2244(d)(2), 60 Petitioner’s motion for a certificate of appealability filed
in the same matter likewise does not constitute an “application for State post-conviction
or other collateral review” within the meaning of Section 2244(d)(2). Third, and in any
event, even tolling the time during which Petitioner’s first federal application was
pending, Petitioner’s instant federal application would still be untimely.
By the time Petitioner filed his state court application in March 2013, the AEDPA’s
one-year limitations period had long since expired. Once the federal one-year limitations
period has expired, “[t]here is nothing to toll.” 61 Accordingly, Petitioner’s state court
application for post-conviction relief filed in March 2013 does not toll the one-year

57 See R. Doc. 13 (Objection to Report and Recommendation) filed

in Charles Ficher v. Burl Cain, Civ. Action
No. 05-6373 (E.D. La. 2005).
58 See R. Doc. 14 (Order Adopting Report and Recommendation) filed in Charles Ficher v. Burl Cain, Civ.
Action No. 05-6373 (E.D. La. 2005).
59 See R. Doc. 23 (Order Denying Petitioner’s C.O.A. Motion) filed in Charles Ficher v. Burl Cain, Civ. Action
No. 05-6373 (E.D. La. 2005).
60 Duncan, 533 U.S. 181-82.
61 Butler, 533 F.3d at 318.

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limitations period. Petitioner’s federal application is therefore untimely, even including
the applicable statutory tolling credit Petitioner’s state court application, filed on October
22, 1996, remained pending.
C.

Equitable Tolling

“Generally, a litigant seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” 62 In this case, Petitioner does not expressly
argue he is entitled to equitable tolling. However, Petitioner argues: “Petitioner had
inadvertently become Judicially stagnated up until the arrival of Martinez vs. Ryan” and
“Petitioner filed his instant application reliance on Martinez within one-year of said
decision.” 63 However, “a mere change in decisional law ordinarily does not constitute an
extraordinary circumstance under the rule.” 64 Thus, even if Petitioner has met burden to
establish he has been pursuing his rights diligently, he has not satisfied his burden to
establish an extraordinary circumstance stood in his way. The record likewise does not
reveal any extraordinary circumstances that would warrant equitable tolling. Mistake,
ignorance of the law, and a prisoner’s pro se status do not warrant equitable tolling. 65
Accordingly, the Court finds Petitioner is not entitled to equitable tolling.

Pace, 544 U.S. at 418; see also Holland v. Florida, 560 U.S. 631, 649 (2010).
R. Doc. 24 at 5-6.
64 Clark v. Stephens, 627 F. App’x 305, 307 (5th Cir. 2015) (citing Gonzalez v. Crosby, 545 U.S. 524, 536–
37 (2005); Hernandez v. Thaler, 630 F.3d 420, 429-30 (5th Cir. 2011)); see also Gonzalez, 545 U.S. at 536
(“The District Court's interpretation was by all appearances correct under the [appellate court’s] thenprevailing interpretation of 28 U.S.C. § 2244(d)(2). It is hardly extraordinary that subsequently, after
petitioner's case was no longer pending, [the appellate court] arrived at a different interpretation [of the
AEDPA].”).
65 Johnson v. Quarterman, 483 F.3d 278, 286 (5th Cir. 2007); Cousin v. Lensing, 310 F.3d 843, 849 (5th
Cir. 2002); Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir. 2002); Felder v. Johnson, 204 F.3d 168, 171 (5th
Cir. 2000).
62
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D.

Actual Innocence

“[A]ctual innocence, if proved, serves as a gateway through which a petitioner may
pass whether the impediment is a procedural bar . . . or, as in this case, expiration of the
statute of limitations.” 66 “[T]enable actual-innocence gateway pleas are rare: ‘[A]
petitioner does not meet the threshold requirement unless he persuades the district court
that, in light of the new evidence, no juror, acting reasonably, would have voted to find
him guilty beyond a reasonable doubt.’” 67 “To be credible, such a claim [of actual
innocence] requires petitioner to support his allegations . . . with new reliable evidence . .
that was not presented at trial.” 68 To succeed on an actual innocence claim, “the petitioner
must show that it is more likely than not that no reasonable juror would have convicted
him in the light of the new evidence.” 69
In the instant petition, Petitioner suggests he is actually innocent because
prosecution witness, Robert Young, offered inconsistent and therefore arguably
unreliable testimony at trial. 70 As “new” evidence in support of the actual innocence
claim, Petitioner points to an affidavit he obtained from an uncalled defense witness,
Kimmie Alexander, whom he disclosed to defense counsel in advance of trial. In her
affidavit, she states she saw someone other than Petitioner shoot the victim. 71 In his
objection to the report and recommendation, Petitioner reiterates his argument that
Alexander’s testimony is “new” evidence “not presented at trial” establishing his actual
innocence. 72

McQuiggin, 569 U.S. at 386.
Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
68 Schlup, 513 U.S. at 324.
69 Id. at 327.
70 R. Doc. 1 at 2-3.
71 R. Doc. 1-1 at 2.
72 R. Doc. 24 at 10-11.
66
67

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It is doubtful whether Alexander’s testimony constitutes “new” evidence. In
rejecting Petitioner’s direct appeal claim regarding the sufficiency of the evidence upon
which Petitioner was convicted, the state district court held: “[e]ven if the defense
impeached Young’s credibility, the state introduced other evidence which was sufficient
to support the jury’s verdict.” 73 In any event, Petitioner has established merely the
existence of conflicting evidence and credibility issues, 74 not that “it is more likely than
not that no reasonable juror would have convicted him in the light of the new evidence.” 75
Accordingly, Petitioner’s actual innocence claim does not entitle him to tolling of one-year
limitations period.
E.

Martinez

In Martinez v. Ryan, the Supreme Court held “a procedural default [imposed by
state courts] will not bar a federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.” 76 Notably, “Martinez does not
apply to § 2244(d)'s one-year limitations period.” 77 In his objection to the report and
recommendation, Petitioner “submits[] that Louisiana State Law and Federal law
requires this Honorable Court to apply Martinez retroactively.” 78 However, “the Supreme
Court has not made either Martinez or Trevino retroactive to cases on collateral review,
within the meaning of 28 U.S.C. § 2244.” 79 Accordingly, Petitioner’s objection cannot

State v. Fisher, 95-0476, at 4-5 (La. App. 4 Cir. Jan. 19, 1995) (unpublished).
Bosley v. Cain, 409 F.3d 657, 665 (5th Cir. 2005).
75 Schlup, 513 U.S. at 327.
76 566 U.S. 1, 17 (2012); see also Trevino v. Thaler, 133 S. Ct. 1911, 1912 (2013).
77 Shank v. Vannoy, No. 16–30994, 2017 WL 6029846, at *2 (5th Cir. Oct. 26, 2017) (citing Lombardo v.
United States, 860 F.3d 547, 557–58 (7th Cir. 2017); Arthur v. Thomas, 739 F.3d 611, 630–31 (11th Cir.
2014); Bland v. Superintendent Greene SCI, 2017 WL 3897066, at *1 (3d Cir. 2017)).
78 R. Doc. 24 at 7.
79 In re Paredes, 587 F. App’x 805, 813 (2014).
73

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succeed. Petitioner is not entitled to any relief under Martinez for his untimely filing
under the AEDPA.
The Court, having considered the record, the applicable law, relevant filings, and
the magistrate judge’s Report and Recommendation finds the magistrate judge’s findings
of fact and conclusions of law are correct and hereby approves the United States
Magistrate Judge’s Report and Recommendation and ADOPTS it as its opinion in this
matter. 80
CONCLUSION
IT IS ORDERED that Petitioner Charles Ficher, Jr.’s petition against Respondent
Jerry Goodwin be and hereby is DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 2nd day of August, 2019.

___________________________
SUSIE MORGAN
UNITED STATES DISTRICT
JUDGE

80

R. Doc. 9.

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