Pierre v. Cain et al

Filing 47

ORDER AND REASONS ADOPTING REPORT AND RECOMMENDATIONS 40 - IT IS ORDERED that Petitioner Delis Pierre's petition for issuance of a writ of habeas corpus under 28 U.S.C. § 2254 be and hereby is DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan.(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DELIS PIERRE,
Plaintiff

CIVIL ACTION

VERSUS

NO. 15-5252

N. BURL CAIN, ET AL.,
Defendants

SECTION “E”(4)

ORDER AND REASONS
Before the Court is a Report and Recommendation issued by Chief Magistrate
Judge Roby recommending Petitioner Delis Pierre’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, albeit untimely. 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 Louisiana State Penitentiary
in Angola, Louisiana. 3 On January 13, 2011, Petitioner was charged by Bill of Information
in Tangipahoa Parish with two counts of armed robbery, one count of second degree
kidnapping, and one count of purse snatching. 4 Petitioner was tried before a jury on July
19 and 20, 2011, and found guilty as charged on all counts. 5 On September 7, 2011, the
state trial court denied Petitioner’s motions for a new trial and for post-verdict judgment

R. Doc. 40.
R. Doc. 45.
3 R. Doc. Nos. 3, 39.
4 St. Rec. Vol. 1 of 7, Bill of Information, 1/13/11.
5 St. Rec. Vol. 1 of 7, Jury Verdict (Count 2), 7/20/11; Jury Verdict (Count 3), 7/20/11; Jury Verdict (Count
4), 7/20/11; Trial Transcript, 7/19/11; Trial Transcript, 7/20/11; St. Rec. Vol. 2 of 7, Trial Transcript
(continued), 7/20/11; Trial Minutes, 7/19/11; Trial Minutes, 7/20/11.
1

2

1

of acquittal. 6 On October 17, 2011, the trial court sentenced Petitioner. 7 The trial court
also denied Pierre’s motion to reconsider the sentences. 8 Thereafter, Petitioner directly
appealed his conviction and sentences. 9 On September 12, 2012, the Louisiana First
Circuit affirmed Petitioner’s convictions and sentences. 10 The Louisiana Supreme Court
denied Petitioner’s writ application on April 1, 2013. 11 Petitioner did not file for review
with the United States Supreme Court. 12
On June 26, 2014, Petitioner submitted to the state trial court an application for
post-conviction relief. 13 On July 1, 2014, the state trial court denied the application. 14 On
November 3, 2014, the Louisiana First Circuit denied Petitioner’s writ application. 15 On
October 9, 2015, the Louisiana Supreme Court denied Petitioner’s subsequent writ
application. 16
On May 23, 2016, Petitioner submitted to the state trial court a second application
for post-conviction relief. 17 The state trial court denied the application on August 30,
2016. 18 On January 10, 2017, the Louisiana First Circuit denied Pierre’s writ application. 19
St. Rec. Vol. 1 of 7, Motion for New Trial, 9/6/11; Motion for Judgment of Acquittal, 9/6/11; St. Rec. Vol.
2 of 7, Hearing Minutes, 9/7/11.
7 St. Rec. Vol. 1 of 7, Sentencing Transcript, 10/17/11; St. Rec. Vol. 2 of 7, Sentencing Minutes, 10/17/11.
8 St. Rec. Vol. 1 of 7, Motion to Reconsider Sentence, 11/7/11; Trial Court Order, 11/10/11.
9 St. Rec. Vol. 6 of 7, Appeal Brief, 2012-KA-0125, 4/30/12.
10 St. Rec. Vol. 6 of 7, 1st Cir. Opinion, 2012-KA-0125, 9/21/12.
11 State v. Pierre, 110 So.3d 139 (La. 2013); St. Rec. Vol. 4 of 7, La. S. Ct. Order, 2012-KO-2227, 4/1/13; St.
Rec. Vol. 6 of 7, La. S. Ct. Letter, 2012-KO-2227, 10/5/12.
12 R. Doc. 40 at 5.
13 St. Rec. Vol. 6 of 7, Application for Post-Conviction Relief, 7/1/14 (dated 6/26/14). The Court will address
the dating of this document later in this Report.
14 St. Rec. Vol. 6 of 7, Trial Court Order, 7/1/14; Clerk’s Letter, 7/2/14.
15 State v. Pierre, No. 2014-KW-1196, 2014 WL 12570014, at *1 (La. App. 1st Cir. Nov. 3, 2014); St. Rec. Vol.
6 of 7, 1st Cir. Order, 2014-KW-1196, 11/3/14. On June 13, 2019, the Court’s staff contacted the clerk of the
Louisiana First Circuit and was advised that this writ application was timely filed by Pierre on August 14,
2014. See St. Rec. Vol. 6 of 7, Notice of Intent, 8/1/14; Trial Court Order, 8/4/14.
16 State ex rel. Pierre v. State, 178 So.3d 998 (La. 2015); St. Rec. Vol. 4 of 7, La. S. Ct. Order, 2014-KH2465,
10/9/15; St. Rec. Vol. 6 of 7, La. S. Ct. Letter, 2014-KH-2465, 11/22/14.
17 St. Rec. Vol. 5 of 7, Application for Post-Conviction Relief, 6/2/16 (dated 5/23/16).
18 St. Rec. Vol. 6 of 7, Trial Court Order, 8/30/16; St. Rec. Vol. 3 of 7, Clerk’s Letter, 8/31/16.
19 State v. Pierre, No. 2016-KW-1330, 2017 WL 105962, at *1 (La. App. 1st Cir. Jan. 10, 2017); St. Rec. Vol.
3 of 7, 1st Cir. Order, 2016-KW-1330, 1/10/17.
6

2

On May 25, 2018, the Louisiana Supreme Court denied Petitioner’s subsequent writ
application. 20
On October 16, 2015, Petitioner filed the instant federal petition for habeas corpus
relief. 21 The State filed an opposition asserting the defenses of untimeliness and failure to
exhaust. 22 After filing a reply, 23 Petitioner moved on February 17, 2016 for leave to amend
his petition to include additional claims that he argued were not exhausted because of
prior acts of ineffective assistance of counsel and for a stay to allow him to complete
exhaustion. 24 The Court stayed the proceedings on April 11, 2016 to permit Petitioner an
opportunity to exhaust his unexhausted claims. 25
On November 13, 2018, the Court lifted the stay imposed on April 11, 2016. 26 On
that same date, the Court granted Petitioner’s motion to amend and supplement his
petition. 27 In his petition, Petitioner asserts the following grounds for relief: (1) he was
denied a fair trial when the state trial court denied the motion for mistrial based on the
introduction of other crimes evidence; (2) he received ineffective assistance when counsel
failed to take action to prevent the playing of his statement that mentioned uncharged
offenses; (3) he was denied effective assistance when counsel (a) failed to request that the
District Attorney’s Office be recused, (b) failed to object to prosecutorial misconduct, and
(c) failed to request a continuance to investigate mitigating factors for sentencing; (4)(a)
prosecutorial misconduct occurred when the prosecutor raised religious accountability
State ex rel. Pierre v. State, 243 So.3d 562 (La. 2018); St. Rec. Vol. 3 of 7, La. S. Ct. Writ Application, 17KH-385, 3/2/17 (dated 2/1/17); St. Rec. Vol. 5 of 7, La. S. Ct. Letter, 2017-KH-385, 3/7/17.
21 R. Doc. 3. The Clerk of Court filed the petition in November 2015, but the original filing is dated October
16, 2015. See R. Doc. 3-1.
22 R. Doc. 10.
23 R. Doc. 14.
24 R. Doc. 15.
25 R. Doc. 16.
26 R. Doc. 25.
27 Id.
20

3

and destroyed Pierre’s credibility; (4)(b) the state trial court denied him due process when
he was brought to trial without being arraigned on the purse snatching charge; (5) the
state trial court erred when it denied the motion to sever and for new trial; (6) the state
trial court erred when it denied the motion to recuse the district attorney and committed
perjury; (7) the state trial court erred when it allowed him to appear for trial in prison
garb; (8) the state trial court erred when it allowed a biased juror to serve; (9) the state
trial court erred when it failed sua sponte to examine the voluntariness of his inculpatory
statement when trial counsel failed to object or move to suppress the statement; (10) the
state trial court erred by admitting other crimes evidence; (11) the state trial court failed
to establish his competence and sanity; (12) the state trial court failed to admonish the
jury and otherwise address prosecutorial misconduct; (13) the state trial court imposed
an excessive sentence; (14) the State suppressed favorable evidence; (15) prosecutorial
misconduct occurred when the State (a) knowingly introduced uncorrected false
evidence, (b) elicited false testimony from witnesses, and (c) slandered petitioner’s
character and introduced other crimes evidence; (16)(a) the State failed to properly notice
its intent to use other crimes evidence; (16)(b) counsel failed to withdraw when there was
a clear conflict of interest; (17)(a) he was denied a fair trial when the state trial judge failed
to recuse himself; (17)(b) counsel failed to conduct a reasonable investigation in
preparation for trial; (18) he received ineffective assistance when counsel failed to
investigate petitioner’s mental health, competence, and the viability of an insanity
defense; (19) he received ineffective assistance when counsel (a) failed to file for review of
the denial of motions, (b) failed to present petitioner for trial in civilian clothes, (c) failed
to object to the prosecutor’s attack on petitioner’s character, (d) manipulated petitioner
into signing a stipulation, (e) waived petitioner’s presence at sidebars during voir dire and
4

accepted a bias juror, (f) failed to object to the lack of notice for other crimes evidence, (g)
failed to move to suppress the video interview, (h) deceived petitioner about the evidence
to convince him to accept a plea offer, (i) failed to review the motion for new trial and
preserve issues for appeal, and (j) infringed on their confidentiality; and (20) he received
ineffective assistance of appellate counsel for failing to include specific claims requested
by petitioner. 28
The State filed an opposition to Petitioner’s federal application on January 2, 2019,
arguing Petitioner’s petition was not timely filed under the AEDPA and that a number of
his claims are in procedural default. 29,30 Petitioner filed a reply. 31 Chief Magistrate Judge
Roby concluded in her Report and Recommendation Petitioner’s claims should be
dismissed with prejudice as time-barred. 32 Petitioner filed an objection on July 25, 2019,
requesting the Court “adopt his previously filed Response to States [sic] argument of
timeliness while considering the following [arguments in his objection].” 33
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. 34 As to the portions of the report that are not objected to, the Court

R. Doc. 26.
R. Doc. 32.
30 As Chief Magistrate Judge Roby states in the Report and Recommendation, “[w]hile the record supports
both defenses [of untimeliness and procedural default], for the following reasons, the Court finds that
Pierre’s federal habeas petition was not timely filed and must be dismissed with prejudice for that reason.”
R. Doc. 40 at 12.
31 R. Doc. 39.
32 R. Doc. 40.
33 R. Doc. 45 at 5.
34 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.”).
28
29

5

needs only review those portions to determine whether they are clearly erroneous or
contrary to law. 35
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.” 36 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.” 37 AEDPA
requires that a federal court “accord the state trial court substantial deference.” 38
II.

Statute of Limitations
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“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.” 39 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
Id.
28 U.S.C. § 2254(d)(1).
37 Williams v. Taylor, 529 U.S. 362, 405–06 (2000).
38 Brumfield v. Cain, 135 S. Ct. 2269 (2015).
39 28 U.S.C. § 2244(d)(1).
35

36

6

(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence. 40
The one-year period of limitation is subject to certain exceptions. For instance, the
AEDPA expressly allows the one-year limitations period to be interrupted in the following
way: “[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 shall
not be counted toward any period of limitation under this subsection.” 41 Additionally, the
one-year period of limitation may be equitably tolled in extraordinary circumstances. 42
Because Petitioner does not argue that any other exceptions to the one-year limitations
period apply, and because the Court agrees with the magistrate judge that no other
exceptions are applicable, 43 the Court addresses only whether Petitioner is entitled to
statutory tolling or equitable tolling of the AEDPA one-year limitations period.
Chief Magistrate Judge Roby 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. 44 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

Id. § 2244(d)(1)(A)-(D) (emphasis added).
Id. § 2244(d)(2).
42 Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citing Irwin v. Dept. of Veterans Affairs, 498 U.S. 89,
96 (1990)).
43 As Chief Magistrate Judge Roby states in the Report and Recommendation: “Pierre has asserted no
excuse to avoid the expiration of the limitations period. He has not asserted his actual innocence and has
brought no new, reliable evidence to meet the high burden set forth in McQuiggin v. Perkins, 569 U.S. 383
(2013). Furthermore, the United States Supreme Court’s holdings in Martinez v. Ryan, 566 U.S. 1 (2012)
and Trevino v. Thaler, 569 U.S. 413 (2013), do not provide a basis for review of Pierre’s untimely filed
federal petition or his ineffective assistance of trial counsel claims.” R. Doc. 40 at 17.
44 R. Doc. 40.
40
41

7

date on which his underlying criminal judgment becomes “final.” 45 The Court first
addresses when petitioner filed his federal habeas petition. To determine when
Petitioner’s federal habeas corpus petition was filed, courts apply the mailbox rule.
Petitioner argues his federal habeas corpus petition should be deemed filed on October
14, 2015, the date he wrote next to his signature on his petition. 46 However, under the
mailbox rule, the date prison officials receive the pleading from the inmate for delivery to
the court is considered the time of filing for limitations purposes. 47 When the pleadings
bear an official stamp date from the prison, the official stamp acts as proof of the date of
presentation and preempts the need to consider the inmate’s signature date. 48 Courts may
only presume an inmate’s signature date to be the date of presentation when there is no
other proof of when the pleadings were presented for mailing. In this case, the official
stamp of the Louisiana State Penitentiary’s Legal Programs Department reflects the
petition and accompanying documents were received from Petitioner by prison officials
on October 16, 2015, for electronic mailing to a federal court. 49 Further, as the magistrate
judge stated, “[h]ere [Petitioner] has provided only self-serving argument for the court to
consider and accept a different, earlier presentation date. The Court is not persuaded that
his signature date should prevail over the official prison date stamp.” 50
The Court now turns to the date Petitioner’s underlying criminal judgment became
final. “When a habeas petitioner has pursued relief on direct appeal through his state's

28 U.S.C. § 2244(d)(1)(A).
R. Doc. 39 at 5.
47 Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999); Spotville v. Cain, 149 F.3d 374, 378 (5th Cir.
1998); Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995)).
48 Smith v. Cain, No. 12-2014, 2014 WL 2898457, at *6 n.16 (E.D. La. Jun. 26, 2014); see also, England v.
Cain, No. 15-0961, 2015 WL 5971196, at *4 n.33 (E.D. La. Oct. 14, 2015) (Order adopting attached Report
and Recommendation).
49 R. Doc. 1-1 (original deficient pleading).
50 R. Doc. 40 at 11.
45

46

8

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.” 51 In this case, the Louisiana Supreme Court denied
Petitioner writ application on April 1, 2013. 52 Petitioner’s convictions and sentences
therefore became final 90 days later, on July 1, 2013. 53
Accordingly, Petitioner had one year from July 1, 2013, or until July 1, 2014, to
timely file a federal application for habeas corpus relief. Petitioner agrees his state
conviction became final on July 1, 2013. 54 Because Petitioner filed his federal habeas
petition on October 16, 2015, his petition was filed untimely unless the one-year statute
of limitations was interrupted or otherwise tolled.
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. 55 A matter is “pending” for § 2244(d)(2) purposes “as long as the
ordinary state collateral review process is ‘in continuance.’” 56 In this case, the one-year
AEDPA filing period began to run on July 2, 2013, the day after Petitioner’s convictions
and sentences became final. The period continued to run from that date for 359 days, until

Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (citing Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir.
2003)).
52 State v. Pierre, 110 So.3d 139 (La. 2013); St. Rec. Vol. 4 of 7, La. S. Ct. Order, 2012-KO-2227, 4/1/13; St.
Rec. Vol. 6 of 7, La. S. Ct. Letter, 2012-KO-2227, 10/5/12.
53 The last day of the filing period was Sunday, June 30, 2013, which left the last day to fall on the next
business day, Monday, July 1, 2013. See La. Code Crim. P. art. 13; Fed. R. Civ. P. 6.
54 R. Doc. 39 at 10.
55 28 U.S.C. § 2244(d)(2).
56 Carey v. Saffold, 536 U.S. 214, 219-20 (2002); Williams, 217 F.3d 303, 310 (5th Cir. 2000) (quoting
Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999)) (finding that a matter is “pending” for Section 2244(d)(2)
purposes until further appellate review is unavailable under Louisiana’s procedures.); see also Melancon v.
Kaylo, 259 F.3d 401, 405 (5th Cir. 2001).
51

9

June 26, 2014, when Petitioner filed his first application for post-conviction relief to the
state trial court. 57 Petitioner agrees the tolling period began on June 26, 2014. 58 The oneyear limitations period remained tolled from June 26, 2014 through October 9, 2015,
when the Louisiana Supreme Court denied Petitioner’s writ application. At that time,
Petitioner had six days remaining to meet the one-year AEDPA filing deadline. Petitioner
agrees six days remained at this point. 59 The time expired on October 15, 2015. Petitioner
likewise agrees the one-year period expired on October 15, 2015. 60 Petitioner did not file
any state post-conviction or other collateral reviewing before October 15, 2015.
Petitioner objects to the finding in the Report and Recommendation that he did
not file his federal petition until October 16, 2015, one day after the limitations period
expired. 61 Petitioner argues he filed his federal petition on October 14, 2015, one day
before the expiration of the limitations period. 62 October 14, 2015 is the date Petitioner
placed next to his signature on his federal application. 63 The official stamp of the
Louisiana State Penitentiary’s Legal Programs Department reflects the petition and
accompanying documents were received from Pierre by prison officials on October 16,
2015, for electronic mailing to a federal court. 64

57 With respect to this application, unlike his actual federal petition, Petitioner argues the Court should
ignore his signature date of June 23, 2014 and consider the pleading filed under the mailbox rule when it
was taken from him by prison personnel on June 26, 2014. R. Doc. 39 at 6. Petitioner provides an exhibit
in which he indicates that June 26, 2014, was the date the pleading was “placed in the hands of L.S.P. Class.
Ofcr.” R. Doc. 39-1 at 1. The verification was signed by the “Ex-Officio Notary” prison official and indicates
that the pleading was “sworn to and subscribed before” him on June 26, 2014 (despite Pierre’s indication
that he signed it previously on June 23, 2014). The magistrate judge stated: “The official declaration is
deemed credible . . . Nevertheless, even without prompting by Pierre, the record demonstrates that June
26, 2014, was the filing date under the mailbox rule.” R. Doc. 40 at 14. The Court agrees with the magistrate
judge and uses June 26, 2014 as the date on which Petitioner filed his first state court petition.
58 R. Doc. 39 at 10.
59 Id.
60 Id.
61 R. Doc. 45 at 6-7.
62 R. Doc. 39 at 7-8; R. Doc. 45 at 7.
63 Id.
64 R. Doc. No. 1-1 at 27 (original deficient pleading).

10

As previously explained, under the mailbox rule, the date prison officials receive
the pleading from the inmate for delivery to the court is considered the time of filing for
limitations purposes. 65 In this case, the official stamp from the Legal Programs
Department reflects that the federal pleading was received from Petitioner by prison
officials on October 16, 2015, the day after the AEDPA filing period expired. Accordingly,
Petitioner’s federal petition deemed filed on October 16, 2015 was filed after the AEDPA
filing period expired on October 15, 2015.
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.” 66 Extraordinary circumstances “would
exist, for example, if ‘the plaintiff was actively misled by the defendant about the cause of
action or was prevented in some extraordinary way from asserting his rights.’” 67 “But, a
‘garden variety claim of excusable neglect’ by the petition does not support equitable
tolling.’”68
In his objection to the Report and Recommendation, Petitioner argues “he should
be entitled to equitable tolling due to his ongoing, nonwavering diligence and
circumstances outside of his control that prevented his timely filing, to wit, he has no
control of when he receives ‘decisions’ from the courts.” 69 Petitioner further argues:
“Petitioner did not receive his La. Supreme Courts Oct. 9th decision until Oct. 14 and due

Coleman, 184 F.3d at 401; Spotville, 149 F.3d at 378; Cooper, 70 F.3d at 379.
Pace, 544 U.S. at 418.
67 Lookingbill v. Cockrell, 293 F.3d 256, 264 (5th Cir. 2002) (quoting Coleman, 184 F.3d at 402 (internal
brackets and citation omitted)).
68 Id. (quoting Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir. 1996))
69 R. Doc. 45 at 7.
65

66

11

to his Diligence and Knowledge of his remaining 6 days to file, he had ready and waiting
to be mailed his § 2254 Petition at which time which he received decision on Oct. 14, he
immediately and simply placed in his awaiting petition in the mailbox.” 70 Petitioner
“respectfully requests this Honorable Court consider this: At the very minimum it takes
one day for mail to get to its destination at L.S.P.” 71
Even assuming Petitioner has pursued his rights diligently, he has not met his
burden of establishing some extraordinary circumstance stood in his way. The Fifth
Circuit has “consistently [] denied tolling even where the petition was only a few days
late.” 72 For instance, in Lookingbill, the Fifth Circuit rejected a petitioner’s argument
equitable tolling was warranted “because he missed the deadline by only four days.” 73 In
that case, the Fifth Circuit explained: “[i]n past cases, we have focused on the reasons for
missing the deadline rather than on the magnitude of the tardiness.” 74 The reasons for
this focus are as follows:
At the margins, all statutes of limitations and filing deadlines appear arbitrary.
AEDPA relies on precise filing deadlines to trigger specific accrual and tolling
provisions. Adjusting the deadlines by only a few days in both state and federal
courts would make navigating AEDPA's timetable impossible. Such laxity would
reduce predictability and would prevent us from treating the similarly situated
equally. 75
To establish an extraordinary circumstance, Petitioner would have to show, for example,
an “external force, such as governmental interference” prevented Petitioner from timely

Id. (emphasis in original).
Id. (emphasis in original).
72 Lookingbill, 293 F.3d at 265 (citing Ott v. Johnson, 192 F.3d 510, 512 (5th Cir. 1999) (four days late), cert.
denied, 529 U.S. 1099 (2000); Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (two weeks late); Fisher
v. Johnson, 174 F.3d 710, 712 (5th Cir. 1999) (seventeen days late), cert. denied, 531 U.S. 1164 (2001); Felder
v. Johnson, 204 F.3d 168, 171 (5th Cir.) (twenty-one days late), cert. denied, 531 U.S. 1035 (2000)).
73 Id. at 264.
74 Id. (citing Fisher, 174 F.3d at 712, 715–16 (refusing to toll statute of limitations for seventeen days despite
prisoner's confinement in psychiatric ward without access to glasses or legal materials); Ott, 192 F.3d at 513
(refusing equitable tolling where petitioner missed deadline by only a “few days”)).
75 Lookingbill, 293 F.3d at 264-65.
70
71

12

filing his federal petition. 76 In this case, Petitioner has made no such showing. Instead,
Petitioner has argued it commonly takes at least one day for mail to travel to the Louisiana
State Penitentiary’s Legal Programs Department, that Petitioner was aware of this fact,
and that the Louisiana State Penitentiary Legal Programs Department promptly stamped
the petition on October 16, 2015. Like the petitioner’s arguments for equitable tolling in
Lookingbill, Petitioner’s arguments for equitable tolling in this case constitute “‘garden
variety claim[s] of excusable neglect.’” 77 Accordingly, Petitioner is not entitled to
equitable tolling of the one-year statute of limitations period.
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. 78
CONCLUSION
IT IS ORDERED that Petitioner Delis Pierre’s petition for issuance of a writ of
habeas corpus under 28 U.S.C. § 2254 be and hereby is DISMISSED WITH
PREJUDICE.
New Orleans, Louisiana, this 12th day of August, 2019.
_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

Flores, 981 F.2d at 236 (citing McCleskey v. Zant, 499 U.S. 467, 493 (1991)).
Lookingbill, 292 F.3d at 265 (quoting Rashidi, 96 F.3d at 128).
78 R. Doc. 40.
76
77

13