Dantzler v. Cain et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS 9 IT IS ORDERED that the federal application for habeas corpus relief filed by Bobby Dantzler is DISMISSED. The Court therefore DISMISSES WITHOUT PREJUDICE Danztler's challenge to state court case no. 33-873, DISMISSES WITH PREJUDICE Dantzler's challenges to state court case nos. 332-190 and 332-191, and DENIES a certificate of appealability.. Signed by Judge Sarah S. Vance on 4/28/16.(jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BOBBY DANTZLER

CIVIL ACTION

VERSUS

NO. 15-6309

N. BURL CAIN

SECTION: R (1)
ORDER AND REASONS

Pro se litigant Bobby Dantzler petitions the Court for habeas corpus relief under
28 U.S.C. § 2254. 1 Dantzler challenges three convictions (state-court case nos. 332-190,
332-191, and 333-873), the latest of which became final on December 30, 1991. 2
Regarding case no. 333-873, the Magistrate Judge recommends that Dantzler’s petition
be dismissed without prejudice for lack of subject matter jurisdiction. This is Dantzler’s
second petition for federal habeas corpus relief on that conviction, and Dantzler failed to
obtain authorization to file a second or successive application from the Fifth Circuit Court
of Appeals. 3

Regarding case nos. 332-190 and 332-191, the Magistrate Judge

recommends that Dantzler’s petition be dismissed with prejudice as untimely. Dantzler’s
convictions became final more than a decade ago, and any statutory or equitable tolling
to which he may be entitled does not cover that entire span of time. 4
Dantzler objected to the Magistrate Judge’s Report and Recommendation (R&R),
but does not dispute that he filed his habeas petition years late. Nonetheless, Dantzler

1

R. Doc. 1.

2

R. Doc. 9 at 2.

3

Id. at 4, 8.

4

Id. at 5-8.

states that he “feels that his application should not be deemed untimely” and that he
should receive an evidentiary hearing on the merits of his allegations. As the Magistrate
Judge explained in the R&R, Danztler had until April 24, 1997, save any period of
statutory or equitable tolling, to file his habeas petition.

Even the most generous

calculation of statutory and equitable tolling, as the Magistrate Judge applied here, does
not excuse Danztler’s waiting nearly nineteen years to pursue federal habeas relief. This
objection is overruled.
Regarding case no. 333-873, Dantzler objects on the ground that he did not realize
that his repeated, post-judgment filing of petitions for post-conviction relief, motions “to
correct illegal sentence,” and motions to “enforce guilty plea” or to “withdraw guilty plea”
in state court were treated as “postconviction attacks.” 5

As an initial matter, the

Magistrate Judge recommended that any claims attacking Dantzler’s conviction in case
no. 333-873 be dismissed without prejudice because Dantzler has filed second or
successive habeas petitions in federal court, not state court. 6 On August 15, 2001,
Dantzler filed a “Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person
in State Custody,” plainly labeled as such, attacking his conviction and sentence in case
no. 333-873 in this Court.7 Therefore, under 28 U.S.C. § 2244, Dantzler must “move in
the appropriate court of appeals for an order authorizing the district court to consider the
application.” § 2244(b)(3)(A). Because the Court lacks jurisdiction over Dantzler’s
petition without authorization from the Fifth Circuit, the Court will not consider

5

R. Doc. 12 at 2.

6

R. Doc. 9 at 4.

7

Dantzler v. Stalder, No. 01-cv-2455 (E.D. La. Aug. 15, 2001) (R. Doc. 1).

Dantzler’s remaining objections, which pertain to whether he was entitled to withdraw
his guilty plea in state court. 8 Accordingly, these objections are overruled.
Having reviewed de novo Dantzler’s petition, the record, the applicable law, the
Magistrate Judge’s R&R, and Dantzler’s objections to the R&R, the Court approves the
R&R and adopts it as its opinion.
Rule 11(a) of the Rules Governing Section 2254 Proceedings provides that “[t]he
district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” A court may only issue a certificate of appealability if the
petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). The “controlling standard” for a certificate of appealability requires the
petitioner to show “that reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or that the issues
presented [are] adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)).
For the reasons stated in the Magistrate Judge’s R&R and this order, the Court
concludes that Dantzler’s petition fails to satisfy this standard.

8

See R. Doc. 12 at 2.

The Court therefore DISMISSES WITHOUT PREJUDICE Danztler’s challenge to
state court case no. 33-873, DISMISSES WITH PREJUDICE Dantzler’s challenges to state
court case nos. 332-190 and 332-191, and DENIES a certificate of appealability.

28th
New Orleans, Louisiana, this _____ day of April, 2016.

__________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE