Stevenson v. Cain et al
Filing
19
ORDER AND REASONS Denying 16 MOTION to Stay; Further Ordered that the Court adopts the Magistrate Judge's Report and Recommendation, and Dismisses With Prejudice Petitioner's habeas claims. Signed by Judge Ivan L.R. Lemelle.(ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAIMEYAHN STEVENSON
CIVIL ACTION
VERSUS
NO. 15-4776
N. BURL CAIN, ET AL.
SECTION “B” (2)
ORDER AND REASONS
Before the Court are the Petitioner’s Habeas Corpus Petition
under 28 U.S.C. § 2254, and Petitioner’s Motion for Stay and
Abeyance. (Rec. Docs. 4, 16). In his Report and Recommendation
Magistrate Judge Wilkinson recommends that the petition for habeas
corpus be dismissed with prejudice due to its untimeliness. (Rec.
Doc. 14). The Petitioner filed objections to the Magistrate Judge’s
Report and Recommendations, claiming an exceptional circumstance
under 28 U.S.C § 2254 (d)(1). (Rec. Doc. 15). After objecting to
the Magistrate Judges Report and Recommendation, Petitioner filed
a motion seeking a stay of this matter to allow exhaustion of state
remedies. (Rec. Doc. 16). The Respondent filed an opposition to
that motion as well. Rec. Doc. 17.
For the reasons stated below, IT IS ORDERED that the Motion
for Stay be DENIED.
IT IS FURTHER ORDERED that the Court adopts the Magistrate
Judge’s Report and Recommendation, and DISMISSES WITH PREJUDICE
Petitioner’s habeas claims.
1
I.
FACTS AND PROCEDURAL HISTORY
According to the Louisiana Fifth Circuit of Appeal, State v.
Stevenson, 02-769 (La. App. 5 cir. 1/28/03); 839 So. 2d 342, on
August 23, 2001, Ashley Bulot and Donna Kay Billiot were working
at Terrytown Café when the Defendant entered wearing a baseball
cap. (Rec. Doc.14 at 2).
He pulled a gun and demanded a box
containing approximately $6,000 worth of poker tickets and cash.
Id.
While
the
merchandise,
Defendant
Sgt.
was
Boudreaux
stuffing
entered
his
the
pockets
café.
Id.
with
the
When
the
Defendant noticed Sgt. Boudreaux, he pointed his gun at him and
told him not to move or he would kill him. Id. Sgt. Boudreaux
obliged, but once the Defendant exited the café, he ran after the
Defendant and radioed headquarters. Id.
Police units responded to the area and set up a perimeter
around the block, sealing it off. Id.
Officers eventually tracked
the Defendant to a locked backyard shed and apprehended him. Id.
The money and poker tickets taken during the robbery were found on
the floor of the shed. Id.
Stevenson was found guilty of armed robbery on November 15,
2001. (Rec. Doc.14 at 3). Upon finding him to be a fourth felony
offender, a life without parole sentence was pronounced. That
sentence became final on January 29, 2004, after Stevenson failed
to file a writ application with the United States Supreme Court.
Id. at 4.
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On December 1, 2005, Stevenson filed an application for postconviction relief in which he alleged that he was denied effective
assistance of counsel. Id. at 5. On December 9, 2015, the state
trial court denied relief and deemed his claims meritless. Id.
Stevenson did not seek review of that ruling. Id.
Over eight years later, on May 1, 2014, Stevenson signed and
submitted
claimed
another
that
application
untimely
filing
for
post–conviction
should
be
ignored
relief.
due
to
He
the
ineffectiveness of trial counsel, based on Martinez v. Ryan, 132
S. Ct. 1309 (2012). Id.
The state trial court denied that
application on June 13, 2014. Id. at 5. Likewise, the Louisiana
Supreme
court
ultimately
denied
Stevenson’s
related
writ
application on July 31, 2015. Id. at 6.
On
October
15,
2015,
after
correction
of
certain
deficiencies, the clerk of court filed Stevenson’s federal habeas
corpus petition. Id. The petition was deemed to be filed on
September
24,
2015.
(Rec.
Doc.4).
On
April
15,
2016,
Judge
Wilkinson issued a Report and Recommendation, which found that
Stevenson’s habeas petition should be dismissed for untimeliness.
(Rec. Doc.14 at 17). In response on May 2, 2016, Petitioner filed
objections, claiming an exception to the statute of limitations
under Martinez. (Rec. Doc.15 at 1).
In addition, on May 17, 2016, Petitioner filed a motion for
stay and abeyance of the habeas corpus petition to allow exhaustion
3
of state remedies due to newly discovered evidence. (Rec. Doc.16
at 1).
II.
CONTENTIONS OF THE PARTIES
Petitioner contends that the court should stay his habeas
petition in light of newly discovered evidence that indicates his
shoe print does not match the shoe prints found at the crime scene.
(Rec. Doc. 17). He argues that the court should permit him to
exhaust his state court remedies before resolving his habeas
petition.
Respondent
contends
that
the
motion
for
stay
should
be
dismissed because Stevenson’s allegedly unexhausted claims lack
merit. Id. Respondent contends that the evidence relied on by
Stevenson is in fact inculpatory and, at best, inconclusive. Id.
at 3. Thus, they claim that good cause for a stay does not exist
because
Petitioner’s
claims
of
newly
discovered
exculpatory
evidence lack merit. Id. Petitioner also contends in his reply
that the newly discovered evidence is meritorious because the crime
lab report says that the shoe prints are “similar.” Rec. Doc. 18.
He claims that the word similar means that the two shoe prints had
qualities
in
common
and
not
that
they
matched,
which
could
potentially exculpate him by casting reasonable doubt as to whether
the shoe print belonged to him or not. Rec. Doc. 18 at 2.
Stevenson’s habeas petition further alleges that his trial
counsel failed to perform adequate pretrial discovery, did not
4
ensure that pretrial motions were timely filed and heard by the
state trial court, and rendered ineffective assistance by allowing
the judge to give unrecorded jury instructions.
Petitioner claims
that these cumulative errors resulted in denial of due process and
a fair trial. (Rec. Doc. 4).
Respondent claims that the habeas corpus petition should be
dismissed, regardless of the above contentions, because it was
untimely filed and is outside of the statute of limitations. (Rec.
Doc. 14). Petitioner asserts that his untimeliness is excused under
28 U.S.C § 2254(d)(1), which allows equitable tolling of the
statute of limitation in extraordinary cases. (Rec. Doc. 15). The
petitioner claims that in accordance with the case law of Trevino
v. Thaler, 133 S. Ct. 1911 (2013) and Martinez v. Ryan, 132 S. Ct.
1309 (2012), his situation is an extraordinary circumstance that
allows equitable tolling of the statute of limitation. Id.
III. LAW AND ANALYSIS
A. MOTION FOR STAY AND ABEYANCE
In order for a motion for stay and abeyance to be granted the
petitioner 1) must have good cause for his failure to exhaust his
unexhausted claims, 2) must have unexhausted claims that are
potentially
meritorious,
and
3)
must
not
have
engaged
in
intentionally dilatory litigation tactics. Haynes v. Quarterman,
526 F.3d 189, 196 (5th Cir. 2008). All three elements must be
present. Id.
5
Accordingly,
in
adherence
to
the
second
element,
the
Petitioner’s claim must have merit. In the case at hand, the shoe
print evidence is not exculpatory. The Jefferson Parish Sheriff’s
Office Crime Lab found the two shoe prints in question to be
similar. (Rec. Doc. 17-1). This evidence could be viewed in one of
two ways. First, it could be deemed directly inculpatory since it
proves that it is highly probable that the shoe print found at the
crime scene belongs to the Defendant, particularly in light of the
other evidence that linked him to the robbery.
Secondly, in the
best case scenario for the Defendant, the evidence could be deemed
inconclusive because it does not show one way or the other whether
the shoe print found at the crime scene belonged to the Defendant.
In light of strong inculpatory evidence of being spotted by an
officer while robbing the cafe and being found shortly thereafter
with the stolen items, construing the shoe print evidence as
inconclusive would not be sufficient to exculpate the Defendant or
inject reasonable doubt as to his guilt. Therefore, regardless of
how the “new” evidence is viewed, the claim is not shown to be
potentially meritorious. Accordingly, element two is not met and
the motion for stay and abeyance is denied.
B.
Habeas Corpus Petition
i.
Untimeliness
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA)
revised
28
U.S.C
§
2254
6
and
other
habeas
corpus
legislation. It states that the petitioner must have exhausted
state court remedies and must not be in “procedural default” in
order to proceed. Nobles v. Johnson, 127 F.3d 409, 419-20 (5th
Cir. 1997) (citing 28 U.S.C § 2254(b)-(c)). Further, in most cases,
AEDPA requires a petitioner to bring their section 2254 petition
within one year of the date that the conviction became final.
Duncan v. Walker, 533 U.S. 167, 179 (2001).
Stevenson’s conviction became final on January 24, 2004. He
did not file for habeas corpus relief until September 24, 2015,
which
is
well
Accordingly,
beyond
the
Stevenson’s
one
year
petition
is
statute
untimely
of
limitations.
on
its
face.
Nevertheless, certain exceptions to the limitations period exist.
ii.
Exceptions to untimeliness
Under 28 U.S.C § 2254(d)(1), a petitioner’s untimely filing
may be excused if the petitioner has thoroughly pursued his rights
and extraordinary reasons exist which caused untimely filing. Pace
v. Diguglielmo, 544 U.S 408, 418 (2005).
The petitioner claims an exceptional circumstance under 28
U.S.C § 2254(d)(1), asserting that he was impeded in his ability
to timely file his habeas corpus petition by the state’s appellate
procedure because he was not permitted to raise his ineffective
assistance of counsel claim on direct appeal. (Rec. Doc. 15). The
petitioner asserts that case law from Trevino v. Thaler, 133 S.
Ct. 1911 (2013) and Martinez v. Ryan, 132 S. Ct. 1309 (2012),
7
proves that ineffective assistance is an exceptional cause that
tolls the time bar on filing a habeas corpus petition.
In Martinez, the Court states that a federal habeas court can
hear a claim of ineffective assistance of trial counsel that
procedurally defaulted at the state level, if the petitioner had
no counsel or ineffective counsel during the state collateral
proceeding. Martinez, 132 S. Ct. 1309, 1320. After Martinez,
Trevino extended that holding to situations in which the state
procedural framework makes it highly unlikely that the defendant
will be able to raise the ineffective assistance of counsel claim
on direct appeal, in state court. Trevino, 133 S. Ct. 1911, 1921.
Both cases create extremely narrow exceptions that allow
review of substantial claims of ineffective counsel in a habeas
corpus petition despite being in procedural default at the state
level.
In essence, both cases solely address a federal courts
ability to hear cases that are in default in accordance to state
law. They make no mention of untimely filing at the federal level
and they do not create a new rule of constitutional law to trigger
a new AEDPA one year statute of limitations. Adams v. Thaler, 679
F.3d
312,
322
n.6
(5th
Cir.
2012).
Accordingly,
they
are
inapplicable and cannot be used to allow tolling of the statute of
limitations.
Even if they were applicable and triggered a new one year
statute of limitations period, the petitioner would still lose
8
because it has been over one year since those cases were decided.
The Martinez and Trevino cases were decided in 2012 and 2013,
respectively.
By
not
filing
his
federal
action
until
2015
Petitioner is still in violation of the one year statute of
limitation under the AEDPA. Therefore, there appears to be no
reason to excuse the untimeliness of Stevenson’s petition, for
failure to show extraordinary circumstances or tolling grounds.
Accordingly, Stevenson’s Habeas Corpus petition is dismissed.
IV.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that the Motion for
Stay is DENIED.
IT IS FURTHER ORDERED that the Court adopts the Magistrate
Judge’s Report and Recommendation, and DISMISSES WITH PREJUDICE
the instant action as time barred.
New Orleans, Louisiana, this 21st day of June, 2016.
____________________________
UNITED STATES DISTRICT JUDGE
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