Thomas v. Cooley et al

Filing 13

ORDER AND REASONS: For the foregoing reasons, the Court finds that the petition is time-barred. Accordingly, IT IS HEREBY ORDERED that Petitioner's objections are OVERRULED; IT IS FURTHER ORDERED that the Court ADOPTS the Report and Recommendations issued by the Magistrate Judge and DISMISSES Petitioner's claims WITH PREJUDICE. Signed by Judge Nannette Jolivette Brown on 6/28/2017.(cms)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KELVIN THOMAS

CIVIL ACTION

VERSUS

NO. 16-1966

KEITH COOLEY, WARDEN

SECTION “G”(4)

ORDER AND REASONS
Before the Court are Petitioner Kelvin C. Thomas’ (“Petitioner”) objections1 to the Report
and Recommendation of the United States Magistrate Judge assigned to the case.2 Petitioner, a
state prisoner incarcerated at Allen Correctional Center in Kinder, Louisiana, filed a petition for
writ of habeas corpus under 28 U.S.C. § 2254, arguing that his appellate counsel was ineffective,
appellate counsel failed to assert that the jury instruction on prior inconsistent statements was
erroneous, and the trial court failed to object to inadmissible hearsay evidence.3 The Magistrate
Judge found the petition untimely and recommended that the matter be dismissed with prejudice.4
Petitioner objects to the Magistrate Judge’s recommendation.5 After reviewing the petition, the
Magistrate Judge’s Report and Recommendation, the objections, the record, and the applicable
law, the Court overrules Petitioner’s objections, adopts the Magistrate Judge’s recommendation
and dismisses this action with prejudice.

1

Rec. Doc. 12.

2

Rec. Doc. 11.

3

Rec. Doc. 3-1.

4

Rec. Doc. 11.

5

Rec. Doc. 12.

1

I. Background
A.

Factual Background
On May 3, 2001, a grand jury in Tangipahoa Parish indicted Petitioner for first degree

murder.6 The indictment was later amended to reduce the charge to second degree murder.7 On
October 30, 2009, a jury found Petitioner guilty of manslaughter.8 On December 8, 2009, the trial
court denied Petitioner’s motion for a new trial and for a post-verdict judgment of acquittal.9
Petitioner was sentenced to twenty-five years imprisonment.10 The Louisiana First Circuit Court
of Appeal affirmed Petitioner’s conviction and sentence on May 6, 2011.11
The State filed a multiple offender bill charging Petitioner as a multiple felony offender on
March 25, 2010.12 Petitioner was adjudicated to be a multiple offender on May 29, 2012.13 On
June 26, 2012, the trial court vacated the prior sentence and resentenced Petitioner to forty-five
years imprisonment without parole, probation, or suspension of sentence.14 Petitioner’s motion to
reconsider the sentence was denied by the trial court on October 23, 2012.15

6

State Rec., Vol. I of II, Indictment, May 3, 2001.

7

State Rec., Vol. I of II, Indictment, handwritten amendments, June 24, 2008, Oct. 27, 2009, and Mar. 29,

8

State Rec., Vol. I of II, Minute Entry, Oct. 30, 2009.

9

State Rec., Vol. I of II, Minute Entry, Dec. 8, 2009.

2011.

10

Id.

11

Rec. Doc. 11 at 3.

12

State Rec., Vol. II of II, Multiple Bill, Mar. 25, 2010.

13

State Rec., Vol. II of II, Reasons for Judgment, May 29, 2012.

14

State Rec., Vol. I of II, Multiple Bill Sentencing Minutes, June 26, 2012.

15

State Rec., Vol. I of II, Hearing Minutes, Oct. 23, 2012.

2

Petitioner submitted an application for post-conviction relief to the state trial court on
December 13, 2012.16 Petitioner’s counsel also filed a motion for leave to file an out-of-time appeal
of the enhanced sentence.17 The trial court denied the motion for leave to file on July 1, 2013.18
On November 13, 2013, the trial court also denied the application for post-conviction relief.19
On December 29, 2014, Petitioner filed another post-conviction application in the state trial
court claiming that: (1) appellate counsel failed to raise the issue of the insufficiency of the
evidence on appeal; (2) appellate counsel failed to raise on appeal that the jury instruction on prior
inconsistent statements was erroneous; and (3) the trial court failed to object to inadmissible
hearsay evidence.20 The state trial court denied relief on January 14, 2015.21 Petitioner’s related
writ applications were denied by the Louisiana First Circuit Court of Appeal on April 7, 2015,22
and by the Louisiana Supreme Court on February 5, 2016.23
Petitioner filed this habeas petition on February 22, 2016.24 The State filed a response,
arguing that the petition should be dismissed as untimely, or alternatively, due to procedural
default.25

16

State Rec., Vol. II of II, Application for Post-Conviction Relief, Dec. 20, 2012 (dated Dec. 13, 2012).

17

State Rec., Vol. II of II, Motion for Out of Time Appeal, June 24, 2013.

18

State Rec., Vol. II of II, Trial Court Order, July 1, 2013.

19

 State Rec., Vol. I of II, Hearing Minutes, Nov. 13, 2013.

20

State Rec., Vol. I of II, Application for Post-Conviction Relief, Jan. 9, 2015 (attached memorandum dated
Dec. 29, 2014).
21

State Rec., Vol. II of II, Trial Court Order, Jan. 14, 2015.

22

State v. Thomas, 15-KW-0205 (La. App. 1 Cir. 4/7/15); 66 So. 3d 79.

23

State ex rel. Thomas v. State, 15-KH-08833 (La. 2/5/16); 194 So. 3d 589

24

Rec. Doc. 3-1.

25

Rec. Doc. 10.

3

B.

Report and Recommendation Findings
On September 13, 2016, the Magistrate Judge recommended that the petition be dismissed

with prejudice as untimely.26 The Magistrate Judge found that Petitioner failed to file his petition
within the time required by the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Subsections A and C.27
The Magistrate Judge noted that under Subsection A of the AEDPA, Petitioner is required
to file a habeas corpus petition within one year of the date his conviction became final.28 The
Magistrate Judge determined that Petitioner’s conviction became final on November 26, 2012,
when he failed to seek review of his resentencing.29 Therefore, Petitioner was required to file his
federal habeas corpus petition by November 26, 2013, unless he was entitled to tolling.30
The Magistrate Judge determined that Petitioner was entitled to some statutory tolling
under 28 U.S.C. § 2244(d)(2), which provides that “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 any period of limitation.”31 The
Magistrate Judge found that Petitioner tolled the statute of limitations after seventeen days had
elapsed by filing his first application for post-conviction relief on December 13, 2012.32 The state

26

Rec. Doc. 11 at 15.

27

Id. at 11–13.

28

Id. at 7.

29

Id. at 3.

30

Id. at 7. 

31

Id. (quoting 28 U.S.C. § 2244(d)(2)).

32

Id. at 9.

4

trial court denied that application on November 13, 2013.33 The Magistrate Judge determined that
Petitioner’s application ceased to be “pending” and the statute of limitations resumed running on
December 13, 2013, when Petitioner failed to seek review of the trial court ruling.34
The Magistrate Judge determined that the AEDPA filing period began to run again on
December 14, 2013.35 The Magistrate Judge found that the period ran without interruption for the
remaining 348 days and expired on November 26, 2014.36 The Magistrate Judge noted that
Petitioner did not have a properly filed application for post-conviction relief pending during that
time.37 Petitioner’s next application for post-conviction relief was not filed until December 29,
2014.38 The Magistrate Judge noted that because this filing was made after the expiration of the
AEDPA one-year filing period, it neither renewed the filing period nor provided Petitioner any
additional tolling.39 The Magistrate Judge also noted that Petitioner did not raise any basis for
equitable tolling.40
Next, the Magistrate Judge addressed the applicability of Subsection C, which provides
that the one year limitation period commences on “the date on which the constitutional right
asserted was initially recognized by the Supreme Court, if the right has been newly recognized by

33

Id. at 4.

34

Id. at 9.

35

Id.

36

Id.

37

Id.

38

Id.

39

Id.

40

Id. at 11.

5

the Supreme Court and made retroactively applicable to cases on collateral review.41 The
Magistrate Judge noted that Petitioner relied on the Supreme Court’s decision in Martinez v. Ryan
and Trevino v. Thaler to support his assertion that his petition is timely.42 However, the Magistrate
Judge found Petitioner’s reliance on United States Supreme Court decisions in Martinez and
Trevino to be misplaced.43 The Magistrate Judge noted that in those cases the Supreme Court held
that “a state imposed procedural default will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance of counsel at trial if, in the [State’s] initial-review
collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.”44 Here,
the Magistrate noted that protection under these cases was not triggered because Petitioner asserted
a claim of ineffective assistance of appellate counsel and not a claim of ineffective assistance of
counsel at trial.45 Furthermore, the Magistrate noted that the bar to review at issue is not a state
imposed procedural issue, but rather Petitioner’s failure to meet the federal limitations deadline
under the AEDPA.46 Moreover, the Magistrate Judge noted that the Supreme Court has not made
these cases retroactive to cases on collateral review.47 Therefore, the Magistrate determined that
neither Martinez nor Trevino provided Petitioner a basis for relief.48

41

28 U.S.C. § 2244(d)(1)(C); The Magistrate Judge does not expressly state that Subsection C is
applicable, but the language used to analyze the issue comes directly from Subsection C.
42

Rec. Doc. 11 at 12 (citing Martinez v. Ryan, 566 U.S. 1, (2012) (citing Trevino v. Thaler, 133 S.Ct. 1911,

43

Id.

44

Id.

45

Id.

46

Id. 

47

Rec. Doc. 11 at 12–13.

(2013)).

48

 Id. at 13.

6

Finally, the Magistrate Judge noted that, in McQuiggin v. Perkins, the United States
Supreme Court held that a “credible showing of actual innocence” may allow a petitioner to
overcome an untimely filed habeas corpus claim.49 To invoke the McQuiggin exception, however,
a 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.”50 Additionally, the exception only applies when
“evidence of innocence is so strong that a court cannot have confidence in the outcome of the
trial.”51 The Magistrate Judge further noted that a petitioner must show factual innocence through
presentation of “new reliable evidence.”52 Here, the Magistrate noted that Petitioner only
referenced the lack of evidence presented at trial.53 The Magistrate Judge determined that
Petitioner did not present any reliable new evidence of his factual innocence or any evidence to
convince the court that no reasonable juror would have found him guilty.54 Therefore, the
Magistrate Judge concluded that Petitioner had not established his actual innocence.55
Accordingly, the Magistrate Judge determined that the petition was untimely.56

49

Id. (citing McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013)).

50

Id. at 14.

51

Id. (quoting McQuiggin, 133 S. Ct. at 1936).

52

Id.

53

Id. at 15.

54

Id.

55

Id. 

56

Id. 

7

II. Objections
A.

Petitioner’s Objection
On October 5, 2016, Petitioner filed objections to the Magistrate Judge’s Report and

Recommendation.57 Petitioner argues that he has exhausted his claims in state court.58 He asserts
that he has argued the same claim in both federal and state court—ineffective assistance of
appellate counsel.59 Petitioner states that despite the claim being drafted by different authors, the
substance of the claim has not changed.60 According to Petitioner, “the slight differences in the
claim don’t present a new legal theory or new factual claims.”61
Petitioner objects to the Magistrate Judge’s finding that he did not assert a claim of
ineffective assistance of counsel at trial to trigger protections under Martinez and Trevino.62
Petitioner argues that he raised the issue of ineffective assistance of appellate counsel in his
appeals.63 Petitioner states that appellate counsel was ineffective because counsel failed to raise on
appeal that there was insufficient evidence to support his conviction.64 Petitioner also cites to case
law governing the ineffective assistance of counsel analysis.65

57

Rec. Doc. 12.

58

Id. at 4.

59

Id.

60

Id.

61

 Id.

62

Id.

63

 Id.

64

Id.

65

Id. at 6–7.

8

Finally, Petitioner argues that deference should not be given to the state court’s decision
because it was based upon an unreasonable application of federal law.66 Petitioner asserts that the
Louisiana Supreme Court applied the standard established in Strickland v. Washington
unreasonably when it denied his writ application as untimely.67
B.

State’s Opposition
Despite receiving electronic notification of the filing, the State of Louisiana did not file a

brief in opposition to Petitioner’s objection.
III. Standard of Review
In accordance with Local Rule 73.2, this case was referred to a Magistrate Judge to provide
a Report and Recommendation. A District Judge “may accept, reject, or modify the recommended
disposition” of a Magistrate judge on a dispositive matter.68 The District Judge must “determine
de novo any part of the [Report and Recommendation] that has been properly objected to.”69 A
District Court’s review is limited to plain error of parts of the report which are not properly
objected to.70

66

Id. at 5.

67

Id. at 5–6.

68

Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

69

Fed. R. Civ. P. 72(b)(3).

70
See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objection from ten to fourteen days).

9

IV. Law and Analysis
A.

AEDPA Statute of Limitations
The AEDPA establishes a one-year statute of limitations for the filing of habeas corpus

applications, which shall run 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 actions;
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.71
The Magistrate Judge determined that Subsections A and C could be applicable here.72
Petitioner did not object to the application of either subsection. Accordingly, reviewing for plain
error, and finding none, the Court find that these are the only applicable sections.
B.

Timeliness Under Subsection A
The Magistrate Judge determined that Petitioner’s conviction became final on November

26, 2012, 30 days after his resentencing, because he did not appeal his resentencing.73 Therefore,
Petitioner had until November 26, 2013 to file his federal petition, unless that deadline was
extended through tolling.74 Petitioner did not object to this determination. As noted above, under
Subsection A, a petitioner is required to bring a habeas claim within one year of the date his

71

28 U.S.C. § 2244(d)(1). 

72

Rec. Doc. 11 at 12. As noted earlier, the Magistrate Judge does not expressly state that Subsection C is
applicable. However, the language used to analyze the issue comes directly from Subsection C.
73

Rec. Doc. 11 at 3 (citing Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008)).

74

Id. at 7.

10

conviction became final.75 Accordingly, reviewing for plain error, and finding none, the Court
adopts the Magistrate Judge’s finding that the application must have been filed no later than
November 26, 2013, unless that deadline was extended through tolling.
Petitioner does not object to the Magistrate Judge’s determination regarding tolling.
Therefore, the Court reviews this issue for plain error. The AEDPA provides for statutory tolling
for “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.”76 An application is “properly
filed” when the applicant has complied with all of the State’s procedural requirements.77 These
usually proscribe, for example, timeliness and rules governing notice and place of filing.78
The AEDPA limitation period is also subject to equitable tolling when a diligent petitioner
is prevented from timely filing a petition due to extraordinary circumstances outside of his
control.79 The petitioner bears the burden of establishing entitlement to equitable tolling.80
Equitable tolling is only permitted in “rare and exceptional” circumstances.81 The Fifth Circuit has
held that equitable tolling is warranted only in situations where the petitioner is “actively misled
. . . or is prevented in some extraordinary way from asserting his rights.”82

75

28 U.S.C. § 2244(d)(1)(A).

76

28 U.S.C. § 2244(d)(2)

77

 Pace v. DiGuglielmo, 544 U.S. 408, 413–14 (2005). 

78

Id. at 413–14; Williams v. Cain, 217 F.3d 303, 307 (5th Cir. 2000).

79

Pace, 544 U.S. at 418.

80

Id.

81

Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).

82

 Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002). 

11

Petitioner’s conviction became final on November 26, 2012, 30 days after his
resentencing.83 The limitations period ran for 17 days until December 13, 2012, when he submitted
his first application for state post-conviction relief.84 That application was denied on November
13, 2013.85 The limitations period was tolled until December 13, 2013, when Petitioner did not
seek review of the denial.86 The limitations period resumed running December 14, 2013, and ran
the additional 348 days until it expired on November 26, 2014.87 Petitioner filed his next
application for post-conviction relief on December 29, 2014, after the expiration of the AEPDA
limitations period. Moreover, Petitioner has not established any entitlement to equitable tolling.88
Accordingly, reviewing for plain error, and finding none, the Court adopts the Magistrate Judge’s
finding that Petitioners federal petition was untimely under Subsection A.
C.

Timeliness Under Subsection C
The Magistrate Judge found that Petitioner had no basis for relief under Subsection C.89

Construing his objections broadly, Petitioner appears to object to this determination and argue that
his petition is timely under Subsection C because it was filed within one year of the Supreme
Court’s decisions in Martinez v. Ryan and Trevino v. Thaler.90 Subsection C of the AEDPA permits
commencement of the one year period from “the date on which the constitutional right asserted

83

Rec. Doc. 11 at 3.

84

Id. at 9.

85

Id. at 4.

86

Id. at 9.

87

Id.

88

 Id. at 9, 11.

89

Id. at 13.

90

Rec. Doc. 12 at 3.

12

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.”91
In Martinez, the Supreme Court held that a state imposed “procedural default will not bar
a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the
[State’s] initial-review collateral proceeding, there was no counsel or counsel in that proceedings
was ineffective.”92 This is a narrow exception as Martinez and Trevino only address state imposed
procedural defaults.93 Martinez “does not apply to the AEDPA’s limitations period or any tolling
of that period.”94 Moreover, the Supreme Court has not made Martinez or Trevino retroactive in
habeas proceedings.95 Accordingly, on de novo review, the Court finds the petition untimely under
Subsection C.
D.

Actual Innocence
Petitioner does not object to the Magistrate Judge’s finding that he has not established

actual innocence. A petitioner may overcome the statute of limitations imposed by the AEDPA if
he can prove “actual innocence.”96 The Supreme Court has held that in order to invoke this
exception, a 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.”97 Additionally, actual innocence is only
tenable when “evidence of innocence is so strong that a court cannot have confidence in the

91

28 U.S.C. 2244(d)(1)(C).

92

Martinez, 566 U.S. at 17 (2012).

93

Arthur v. Thomas, 739 F.3d 611, 630–31 (11th Cir. 2014); Smith v. Rogers, No. 14-0482, 2014 WL
2972884, at *1 (W.D. La. Jul. 2, 2014); Falls v. Cain, 13-5091, 2014 WL 2702380, at *3 (E.D. La. Jun. 13, 2014).
94

 Arthur, 739 F.3d at 630–31; Smith, 2014 WL 2972884, at *1; Falls, 2014 WL 2702380, at *3.

95

In re Paredas, 587 F. App’x 805, 813 (5th Cir. 2014).

96

McQuiggen, 133 S.Ct. at 1928 (2013).

97

Id. at 1935 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

13

outcome of the trial.”98 Furthermore, petitioner must prove factual innocence through presentation
of new reliable evidence.99
Petitioner makes no argument regarding actual innocence and presents no evidence of his
factual innocence. Accordingly, reviewing for plain error, and finding none, the Court finds the
petition untimely and dismisses it with prejudice.
V. Conclusion
For the foregoing reasons, the Court finds that the petition is time-barred. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s objections are OVERRULED;
IT IS FURTHER ORDERED that the Court ADOPTS the Report and Recommendation
issued by the Magistrate Judge and DISMISSES Petitioner’s claims WITH PREJUDICE.
NEW ORLEANS, LOUISIANA, this28th day of June, 2017.
____
__________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

98
99

Id. at 1936.
 Schlup, 513 U.S. at 324. 

14