Kirk v. Cain et al
Filing
20
ORDER AND REASONS ADOPTING 18 REPORT AND RECOMMENDATIONS. IT IS FURTHER ORDERED that the 19 objections are OVERRULED. IT IS FURTHER ORDERED that, in accordance with the Magistrate Judge's recommendation, Petitioner Kirk's claims are dismissed with prejudice. Signed by Judge Ivan L.R. Lemelle on 11/1/2016.(mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KEITH KIRK
CIVIL ACTION
VERSUS
NO. 15-4886
LOUISIANA STATE PENITENTIARY
BURL N. CAIN
SECTION “B” (2)
ORDER AND REASONS
I.
NATURE OF MOTION AND RELIEF SOUGHT
Before the Court is Petitioner Keith Kirk’s application for
a writ of habeas corpus under Title 28 United States Code section
2254. Rec. Doc. 4. The matter was referred to United States
Magistrate Judge Joseph C. Wilkinson, Jr. to conduct a hearing, if
necessary. He issued a Report and Recommendation (“Report”) to
dismiss the petition with prejudice as time-barred. Rec. Doc. 18.
In response to the Report, Petitioner timely filed objections and
requested that the Court reject the Report. Rec. Doc. 19. For the
reasons outlined below,
IT IS ORDERED that the Report is ADOPTED.
IT IS FURTHER ORDERED that the objections are OVERRULED.
IT IS FURTHER ORDERED that Petitioner’s claims are
dismissed with prejudice.
II.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner was found guilty as charged of second degree murder
and
sentenced
to
life
in
prison
without
benefit
of
parole,
probation, or suspension of sentence on February 25, 2011. Rec.
Doc. 18 at 3. Petitioner appealed his conviction on October 5,
2011 to the Louisiana Fourth Circuit. Rec. Doc. 17 at 4. 1 The
Louisiana Fourth Circuit affirmed his conviction on August 8, 2012.
State v. Kirk, 2011-KA-1218, p.1 (La. App. 4 Cir. 8/8/2012); 98
So. 3d 934, 934. On September 10, 2012, Petitioner moved for
supervisory review with the Louisiana Supreme Court. Rec. Doc. 17
at 4. The Louisiana Supreme Court denied the writ on February 8,
2013. Rec. Doc. 18 at 4. Petitioner did not seek a writ of
certiorari with the United States Supreme Court within the 90-day
limitation period ending May 9, 2013. Id.
On May 8, 2013, Petitioner filed an application for postconviction relief with the state trial court asserting nineteen
grounds for relief, including three claims that the indictment was
defective,
counsel,
eight
one
grounds
ground
of
of
ineffective
ineffective
assistance
assistance
of
of
trial
appellate
counsel, four claims that the trial court erred in admitting
certain evidence at trial, two claims that he was denied a fair
and impartial trial because the State relied on perjured testimony,
and one claim that the trial court erred in denying his challenges
for cause. Rec. Doc. 18 at 4. The state trial court denied all the
claims on August 20, 2013. Rec. Doc. 18 at 4-5. On September 16,
1
The Government’s Response to 28 U.S.C. § 2254 Petition for Habeas Corpus
Relief cites directly to the state record.
2
2013, Petitioner filed a writ application with the Louisiana Fourth
Circuit, seeking review of the lower court’s denial. Rec. Doc. 18
at 5. The Louisiana Fourth Circuit denied the writ application on
November 26, 2013. Id. Petitioner appealed this denial to the
Louisiana Supreme Court. Id. His appeal was postmarked on January
3, 2014. 2 Id. at 5 n.15. The Louisiana Supreme Court denied the
writ application without stated reasons on September 12, 2014.
State ex rel. Kirk v. State, 2014-KH-0034 (La. 9/12/2014); 147 So.
3d 185.
Then, Petitioner moved for a new trial with the state trial
court on September 9, 2015. Rec. Doc. 18 at 6. On September 28,
2015,
the
state
trial
court
denied
the
motion,
finding
the
arguments repetitive and the motion untimely under Louisiana Code
of Criminal Procedure article 853, which requires a motion for a
new trial to be filed prior to sentencing. Id. Petitioner did not
seek further review of this ruling in state appellate courts. Id.
The Clerk of Court filed Petitioner’s federal habeas corpus
petition on November 2, 2015. Rec. Doc. 4. However, Kirk signed
the memorandum attached to the form petition on September 16, 2015.
Id. at 4 n.21. The Magistrate Judge, applying the federal prisoner
2 The Report rejects the State’s position that this filing was untimely, because
the Magistrate Judge found that the State did not prove that Petitioner failed
to submit his writ application to prison officials on time. Rec. Doc. 18 at 5
n.15. Because Petitioner’s federal habeas petition is ultimately untimely, there
is no need for this Court to address the timeliness of this earlier petition
and the prisoner mailbox rule.
3
mailbox rule, 3 found that the habeas corpus petition was filed on
September 16, 2015. Id. at 8. Petitioner asserts the same nineteen
claims
that
were
asserted
in
his
post-conviction
relief
application. Id. at 6-7.
III. MAGISTRATE JUDGE REPORT AND RECOMMENDATIONS
In
his
Report,
the
Magistrate
Judge
recommended
that
Petitioner’s application for a writ of habeas corpus should be
dismissed with prejudice as time-barred. Rec. Doc. 18 at 15. The
Report found the one-year statute of limitations was neither
interrupted nor equitably tolled after the Louisiana Supreme Court
denied relief on September 12, 2014. Id. at 9-10, 14. Petitioner’s
application was time-barred because it was filed on September 16,
2015, two days after the statute of limitations expired. Id. at
14.
IV.
PETITIONER’S OBJECTIONS
In his Objections to the Report, Petitioner first argues that
his habeas petition was filed within the one-year statute of
limitations under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA). Rec. Doc. 19 at 3. Specifically, Petitioner
contends that the Magistrate Judge failed to add a ninety-day
window to the limitations period. Id. Petitioner states that he
3
The Report rejects the State’s characterization of the prisoner mailbox rule
that the postmarked date is the proper date for when a filing was made. Rec.
Doc. 18 at 8 (citing Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999),
cert. denied, 529 U.S. 1057 (2000)).
4
had ninety days from the September 12, 2014 Louisiana Supreme Court
order denying post-conviction relief to file a writ to the Supreme
Court of the United States. See id. Petitioner argues that had the
limitations period incorporated this ninety-day window, then his
habeas petition, filed September 16, 2015, would have been timely.
Id.
Second, Petitioner claims that the September 9, 2015 Motion
for a New Trial was a properly filed application for collateral
review under 28 U.S.C. § 2244(d)(2), even though the state trial
court denied the Motion as untimely. Rec. Doc. 19 at 4. Petitioner
contends that the state trial court’s post hoc declaration that
the application was untimely does not make the Motion improper.
Id. Plaintiff argues that the Motion was based on proper discovery
of new evidence and facts to satisfy the requirements of such a
motion. Id. Petitioner concludes that his habeas corpus petition
fell within the one-year limitations period because the one-year
limitations period did not begin to run until his Motion for a New
Trial was denied on September 28, 2015. Id. at 5.
Third, Petitioner asserts that he should be granted equitable
tolling
of
Petitioner
requirement
the
statute
states
to
that
exercise
of
he
limitations.
fulfilled
reasonable
Rec.
the
Doc.
19
equitable
diligence
in
at
5.
tolling
bringing
the
claim. Id. at 4-5. Petitioner argues that because he demonstrated
diligence in preparing and filing his habeas petition, equitable
5
tolling should apply and forgive the late filing. Id.
Last, Petitioner argues that the Magistrate Judge abused his
discretion when he failed to give Petitioner fair notice and an
opportunity to be heard on this matter. Rec. Doc. 19 at 3.
Petitioner states that he was unable to present to the Magistrate
Judge arguments and evidence to support his position that his
habeas petition was timely filed. Id. at 4.
V.
LAW & ANALYSIS
In relevant part, the AEDPA provides that a petitioner has
one year to apply for federal habeas corpus relief from “the date
on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review.” 28
U.S.C. § 2244(d)(1)(A). In Petitioner’s first objection, he argues
that a ninety-day window should have been incorporated into his
AEDPA one-year limitations period after the Louisiana Supreme
Court denied his post-conviction relief. Rec. Doc. 16 at 3.
A
petitioner
has
ninety
days
after
a
decision
from
the
Louisiana Supreme Court to file a writ to the Supreme Court of the
United States. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999),
cert. denied, 529 U.S. 1099 (2000); see Johnson v. Quarterman, 438
F.3d 278, 288 (5th Cir. 2007). After these ninety days, the
conviction
is
considered
final
and
the
one-year
statute
of
limitations to file a habeas petition begins to run. Ott, 192 F.3d
at 513. The limitations period can be interrupted during “the time
6
. . . which a properly filed application for State post-conviction
or other collateral review with respect to a pertinent judgment or
claim is pending.” 28 U.S.C. § 2244(d)(2). Even though a petitioner
who applies for state review may also file a petition of certiorari
with the Supreme Court of the United States, that ninety-day window
does not toll the AEDPA one-year statute of limitations because
only “state” reviews trigger interruptions. 4 Ott, 192 F.3d at 512513 (“We conclude and hold that a petition for writ of certiorari
to the Supreme Court of the United States is not an application
for “state” review that would toll the limitations period.”). The
Fifth Circuit held that § 2244(d)(2) specifically excludes federal
review from tolling the limitations period. Id. at 513.
Here, Petitioner in his first objection argues that he has a
ninety-day window after the denial of his post-conviction relief
by the Louisiana Supreme Court before the AEDPA one-year statute
of limitations begins to run. Rec. Doc. 16 at 3. Petitioner
properly filed his application for state post-conviction relief
and
the
Report
concluded
that
this
began
a
§
2244(d)(2)
interruption. Rec. Doc. 18 at 14. However, this interruption cannot
include the ninety-day window, because filing a petition for writ
of certiorari to the Supreme Court of the United States is not an
application for state review. The Petitioner’s first objection has
4
“State” modifies both phrases “post-conviction review” and “other collateral
review.” See Ott, 192 F.3d at n.10 (citing Rhine v. Boone, 182 F.3d 1153, 1156
(10th Cir. 1999)).
7
no merit.
In
Petitioner’s
second
objection,
he
argues
that
his
September 9, 2015 Motion for a New Trial is proper despite the
state trial court’s dismissal of the motion as untimely. Rec. Doc.
16 at 4. A filing is proper when the application “conform[s] with
a state’s applicable procedural filing requirements.” Pace v.
DiGuglielmo, 544 U.S. 408, 414 (2005). An untimely filing does not
conform to the filing requirements and cannot toll the one-year
limitation period under § 2244(d)(2). Id. Because the state trial
court found the Motion for a New Trial untimely, the Motion was
improper and could not toll the AEDPA one-year limitation period.
Petitioner’s second objection has no merit.
Petitioner
argues
in
his
third
objection
that
equitable
tolling should be applied because he exercised “diligence in
investigating and bringing the claims, facts, and evidence” before
the court. Rec. Doc. 16 at 4-5. Equitable tolling is another method
by which the AEDPA one-year limitation period may be interrupted.
The
limitation
petitioner
has
period
may
pursued
be
his
equitably
rights
tolled
diligently
only
and
when
a
rare
the
or
extraordinary circumstance prevented timely filing. Pace, 544 U.S.
at 418; Cantu-Tzin v. Johnson, 162 F.3d 295, 299 (5th Cir. 1998);
Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998), cert. denied,
526 U.S. 1074 (1999). A petitioner must meet both requirements for
equitable
tolling
to
apply.
See
8
Coleman,
184
F.3d
at
402-03
(finding that an inability to file because of a clerk’s error did
not
outweigh
the
petitioner’s
lack
of
diligence).
A
rare
or
exceptional circumstance involves situations where the prisoner
was actively misled or prevented in an extraordinary way from
asserting his or her rights. Pace, 544 U.S. at 418-19; see Hardy
v. Quarterman, 577 F.3d 596, 599-600 (2010). A “garden variety
claim
of
excusable
neglect”
is
not
a
rare
or
exceptional
circumstance. Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir.
1999), cert. denied, 529 U.S. 1057 (2000); see Cantu-Tzin, 162
F.3d at 300.
Here,
Petitioner
argues
that
he
exercised
“diligence
in
investigating and bringing the claims, facts, and evidence” before
the court. Rec. Doc. 16 at 5. There is no claim or showing that
there was any rare or exceptional circumstance that prevented
timely filing. Rec. Doc. 16 at 4-5. Because Petitioner did not
assert both
one-year
requirements
limitation
of
period
the
equitable
cannot
be
tolling
equitably
test,
the
tolled.
See
Coleman, 184 F.3d at 402-03. The third objection has no merit.
Petitioner’s
fourth
objection
states
that
the
Magistrate
Judge failed to give Petitioner fair notice and an opportunity to
present his position. Rec. Doc. 16 at 3. Under the United States
Code, a district judge may designate a magistrate judge to conduct
hearings,
if
recommendations
necessary,
for
and
submit
disposition
9
of
proposed
a
matter.
findings
28
U.S.C.
and
§
636(b)(1)(B)-(C). A copy of the findings is served on the parties,
and the parties have fourteen days to file written objections. 28
U.S.C. § 636(b)(1). After reviewing the objections, the district
judge will review the matter de novo and accept, reject, or modify
the findings and recommendations made by the magistrate judge. Id.
A magistrate judge must inform a party of the right to file written
objections. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
1430 (5th Cir. 1996); Deloney v. Estelle, 679 F.2d 372, 372-73
(5th Cir. 1982).
Here, the Report clearly states that a party has a duty to
file written objections to the “proposed” recommendation within
fourteen days in order to preserve those objections for appeal.
Rec. Doc. 18 at 15-16. Simply put, the Report’s warning statement
is fair notice to the Petitioner of his opportunity to file written
objections
and
present
his
position.
Further,
Petitioner’s
objections have been fully considered and addressed above prior
to final judgment. The fourth objection lacks merit.
VI.
CONCLUSION
The objections do not demonstrate reversible error within the
Magistrate Judge’s Report. Petitioner’s first objection, that the
Magistrate failed to add a ninety-day window to the tolling of the
AEDPA limitations period, is meritless because the ninety-day
window to file a writ to the Supreme Court of the United States is
not an application for State review under 28 U.S.C. § 2244(d)(2).
10
Petitioner’s second objection, that his September 9, 2015 Motion
for a New Trial is proper, has no merit because the state trial
court’s dismissal of the motion as untimely renders the Motion
improper
for
the
purposes
of
§
2244(d)(2)
interruption.
Petitioner’s third objection, that equitable tolling should apply
because he exercised diligence, has no merit because he failed to
allege, let alone demonstrate, a rare or exceptional circumstance
that prevented timely filing. Petitioner’s fourth objection, that
he was denied fair notice and an opportunity to present his case,
has no merit because the Report gave fair notice to Petitioner to
object and his objections have now been considered.
Because the Report does not present clear error and Petitioner
failed to raise valid objections,
IT IS ORDERED that the Report is ADOPTED.
IT IS FURTHER ORDERED that the objections are OVERRULED.
IT IS FURTHER ORDERED that, in accordance with the Magistrate
Judge’s
recommendation,
dismissed
with
Petitioner
Kirk's
claims
are
prejudice.
New Orleans, Louisiana, this 1st day of November, 2016.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
11
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