Joyner v. Varga

Filing 64

ORDER ADOPTING REPORT AND RECOMMENDATIONS 56 . It is ORDERED that Petitioner's Objections to the Magistrate's Report and Recommendation (Rec. Doc. 61) are OVERRULED, and the Magistrate Judge's Report and Recommendation is ADOPTED as the opinion of the Court. It is FURTHER ORDERED that the federal application for habeas corpus relief filed by Jamil Joyner is DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier.(gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMIL JOYNER

CIVIL ACTION

VERSUS

NO. 16-16595

JASON KENT

SECTION: “J”(1)
ORDER

Before the Court is Petitioner Jamil Joyner’s Objections to the Magistrate’s
Report & Recommendation (Rec. Doc. 61). Petitioner objects to the Magistrate
Judge’s conclusions that he is not entitled to equitable tolling and that he failed to
establish his “actual innocence” as set forth in McQuiggin v. Perkins, 569 U.S. 383
(2013).
First, Petitioner fails to address the Magistrate Judge’s conclusion that
equitable tolling does not apply because he did not file a protective federal habeas
petition and therefore was not prevented from asserting his rights. See Pace v.
DiGuglielmo, 544 U.S. 408, 416 (2005); Madden v. Thaler, 521 F. App’x 316, 323 (5th
Cir. 2013) (per curiam). As the Magistrate Judge found, “[i]f petitioner’s attorneys
had followed that procedure, the instant federal application would be timely.”1
Petitioner’s assertion that he was reasonably diligent because he followed up with
the Louisiana Supreme Court about his writ application on November 9, 2015, a
month after filing the application and over three weeks after the limitations period

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(Rec. Doc. 56, at 10).

had expired on October 14, 2015, is likewise unavailing.2 The delivery problems
encountered by Petitioner on the day his writ application was due do not entitle him
to equitable tolling. See Johnson v. Quarterman, 483 F.3d 278, 287-88 (5th Cir. 2007).
Petitioner next contends the Magistrate Judge improperly excluded from
consideration evidence that supported his actual innocence gateway claim on grounds
that the evidence was not “new.”

While Petitioner maintains that Moore v.

Quarterman, 534 F.3d 454 (5th Cir. 2008), “is at odds with” Schlup v. Delo, 513 U.S.
298 (1995), and House v. Bell, 547 U.S. 518 (2006),3 this Court is obligated to follow
Fifth Circuit precedent. Additionally, Petitioner misreads Floyd v. Cain, No. 11-2819,
2016 WL 4799093 (E.D. La. Sept. 14, 2016), to suggest that the Court must consider
any and all evidence when evaluating an actual innocence gateway claim, regardless
of whether it meets the “new evidence” standard. Not so. First, the “petitioner [must]
support his allegations of constitutional error with new reliable evidence . . . that was
not presented at trial.” Schlup, 513 U.S. at 324. “Evidence does not qualify as ‘new’
under the Schlup actual-innocence standard if ‘it was always within the reach of

The Court notes that, while the record reflects that counsel conferred with the court about whether
the filing would be rejected as deficient, it is not clear that counsel inquired about the timeliness of
the application. (Rec. Doc. 51, at 10; Rec. Doc. 61, at 9). Moreover, as the Magistrate Judge noted,
counsel received a letter from the Louisiana Supreme Court on October 8, 2015, indicating that
Petitioner’s writ application, due on October 2, 2015, was “received and filed on 10/7/2015.” (Rec.
Doc. 56, at 9). Any confusion about this language should have been addressed at that time, not a
month later, given the choice to wait until near the end of the federal limitations period before filing
the state post-conviction relief application. See Schmitt v. Zeller, 354 F. App’x 950, 952 (5th Cir. 2009)
(per curiam) (“[Petitioner’s] filing the state petition after squandering most of the year available under
Section 2244 is a factor in deciding whether equitable tolling should be allowed for problems that arise
in later filing the federal petition. Leaving little margin for error is incautious and not diligent.”).
3 (Rec. Doc. 61, at 14).
2

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[petitioner’s] personal knowledge or reasonable investigation.’” Hancock v. Davis,
906 F.3d 387, 390 (5th Cir. 2018) (quoting Moore, 534 F.3d at 465). Only then will
the Court consider this “new” evidence, as well as the “old”—i.e., the evidence
presented at trial—to determine whether it is “more likely than not, in light of the
new evidence, [that] no reasonable juror would find [the petitioner] guilty beyond a
reasonable doubt.” House, 547 U.S. at 538. Because much of the evidence Petitioner
submitted was not “new,” he was not entitled to have it considered by the Court in
evaluating his actual innocence gateway claim. See Hancock, 906 F.3d at 390. As to
the only “new” evidence presented—the Walker affidavit—the Magistrate Judge did
not err in concluding that it was unreliable, see House, 547 U.S. at 552, or that it was
not sufficiently compelling to support his claim, see id. at 538. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Objections to the Magistrate’s
Report and Recommendation (Rec. Doc. 61) are OVERRULED, and the Magistrate
Judge’s Report and Recommendation is ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that the federal application for habeas corpus
relief filed by Jamil Joyner is DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 8th day of August, 2019.

__________________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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