Wright v. Tanner et al
Filing
16
ORDER AND REASONS ADOPTING 13 REPORT AND RECOMMENDATIONS, as set forth in document. IT IS FURTHER ORDERED that the instant petition for habeas corpus relief is DISMISSED WITH PREJUDICE. Signed by Judge Ivan L.R. Lemelle on 8/16/2019.(jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBERT S. WRIGHT
CIVIL ACTION
VERSUS
NO. 17-4187
ROBERT TANNER
SECTION: "B”
ORDER & REASONS
Before
the
Court
are
the
Magistrate
Judge’s
report
and
recommendation (Rec. Doc. 13) and petitioner Robert S. Wright’s
objection to same (Rec. Doc. 15). For the reasons discussed below,
IT IS ORDERED that petitioner’s objection is OVERRULED;
IT IS FURTHER ORDERED that the Magistrate Judge’s report and
recommendation is ADOPTED as the opinion of the Court; and
IT IS FURTHER ORDERED that the instant petition for habeas
corpus relief is DISMISSED WITH PREJUDICE.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner is a convicted inmate currently incarcerated in
the B.B. “Sixty” Rayburn Correctional Center in Angie, Louisiana.
See Rec. Doc. 13 at 1. On February 21, 2014, petitioner was charged
by bill of information with the following six counts: disguising
transactions involving drug proceeds, possession of alprazolam,
possession of oxycodone, third offense possession of marijuana,
being a felon in possession of a firearm, and simple burglary. See
id. at 2.
1
On June 16, 2014, the State entered a nolle prosequi on the
count of disguising transactions involving drug proceeds. See id.
Petitioner entered a plea of guilty to the remaining five counts.
See id. The trial court sentenced petitioner to five years for
possession of alprazolam, five years for possession of oxycodone,
ten years for third offense possession of marijuana, ten years for
simple burglary, and twenty years without benefit of parole,
probation,
or
suspension
of
sentence
for
being
a
felon
in
possession of a weapon. See id. Petitioner did not seek timely
appeal. See id.
On October 28, 2014, petitioner submitted an application for
post-conviction relief to the state trial court. See id. at 3.
Petitioner asserted four grounds for relief: (1) his conviction
was unconstitutional because he did not have effective assistance
of counsel; (2) his counsel was ineffective for advising him to
plead
guilty
when
the
statute
creating
the
offense
was
unconstitutional; (3) his counsel was ineffective when he failed
to inspect the evidence which resulted in a conviction by ex post
facto application of the law in violation of the federal and state
constitutions; and (4) his sentence was excessive. See id.
On December 2, 2014, the state trial court, citing Strickland
v. Washington, 466 U.S. 668 (1984), denied relief on the first
three claims. See id. Additionally, the court held that petitioner
was not entitled to post-conviction review regarding the claim of
2
excessive sentencing, citing La. Code Crim. P. art. 930.3 and State
ex rel. Melinie v. State, 665 So.2d 1172 (La. 1996). See id.
On January 6, 2015, petitioner filed a writ application for
supervisory review of the trial court’s ruling with the Louisiana
First Circuit Court of Appeal. See Rec. Doc. 11 at 5. On March 9,
2015,
the
Louisiana
First
Circuit
denied
petitioner’s
writ
application on the ineffective assistance of counsel claims and
because the excessive sentence claim was not proper for postconviction review, citing State ex rel. Melinie. See Rec. Doc. 13
at 4. The court provided petitioner the opportunity to submit a
new writ by May 8, 2015. See id. at n. 8. Petitioner did not timely
submit a new writ or timely seek review of the First Circuit’s
decision. See Rec. Doc. 13 at 4.
On May 26, 2015, petitioner filed a motion to withdraw the
application for post-conviction relief which was filed on October
28, 2014. See id. The court denied this motion, reasoning that the
prior application had been decided and the related writ had already
been denied by the Louisiana First Circuit. See id.
On July 27, 2015, petitioner filed a new writ application in
the Louisiana First Circuit Court of Appeal, in which he brought
the following two new post-conviction grounds for relief: (1) the
state trial court erred in accepting the plea to the felon in
possession charge because there was insufficient evidence; and (2)
his counsel was ineffective for failing to investigate, call
3
witnesses, and object to the charges and prosecutorial errors,
which may have resulted in a lesser sentence or a different
outcome. See Rec. Doc. 13 at 4-5. On October 5, 2015, the First
Circuit denied the writ application without stated reasons. See
Rec. Doc. 13 at 5.
On May 18, 2016, petitioner submitted a writ application to
the Louisiana Supreme Court, seeking review of both the trial
court’s December 2, 2014 ruling and the Louisiana First Circuit’s
October 5, 2015 ruling. See id. On November 7, 2016, the Louisiana
Supreme Court declined to consider the application because it was
untimely under La. S. Ct. Rule X § 5. See State ex rel. Wright v.
State, 204 So.3d 613 (La. 2016).
On
May
18,
2017,
petitioner
filed
the
instant
federal
petition, asserting the following two grounds for relief: (1) the
state trial court erred when it accepted his guilty plea to the
felon
in
possession
charge
because
there
was
insufficient
evidence; and (2) his counsel was ineffective for failing to
investigate or object to the prosecutor’s errors, which if done,
may have resulted in a different outcome. See Rec. Doc. No. 4. In
its opposition, the state asserted that the petition was not timely
filed under federal law; that petitioner failed to exhaust state
court review; and that the claims are without merit. See Rec. Doc.
11. Petitioner filed a reply in which he asserted that his claims
should be reviewed on the merits. See Rec. Doc. 12.
4
LAW AND FINDINGS
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) controls for purposes of this 28 U.S.C. § 2254 habeas
corpus petition. See Poree v. Collins, 866 F.3d 235, 245 (5th Cir.
2017)
(“Federal
prescribed
by
habeas
the
proceedings
Antiterrorism
are
and
subject
Effective
to
the
Death
rules
Penalty
Act...”); see also Flanagan v. Johnson, 154 F.3d 196, 198 (5th
Cir. 1998) (citing Lindh v. Murphy, 521 U.S. 320 (1997)) (holding
that AEDPA applies to habeas corpus petitions filed after the date
the act went into effect).
There are three threshold requirements under AEDPA which a
habeas corpus petition must meet: (1) the petition must be timely;
(2) the petitioner must have exhausted state court remedies; and
(3) the petitioner must not be in procedural default. See 28 U.S.C.
§ 2244(d); see also Nobles v. Johnson, 127 F.3d 409, 419-20 (5th
Cir. 1997) (citing 28 USC § 2254(b),(c)).
A. Timeliness
For a habeas corpus petition to be timely, the AEDPA requires
that it be filed within one year of the date that the judgment
became final. See 28 U.S.C. § 2244(d)(1)(A); see also Duncan v.
Walker, 533 U.S. 167, 179-80 (2001). A judgment becomes 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). Accordingly, a
conviction becomes final when the period for filing a notice of
5
appeal expires and no appeal has been taken. See Roberts v.
Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003) (holding that a
conviction is final when the defendant does not timely proceed to
the next available step in the state appeal process); see also
Cousin v. Lensing, 310 F.3d 843, 845 (5th Cir. 2002) (petitioner’s
guilty pleas became final at the end of the period for filing a
notice of appeal under La. Code Crim. P. art. 914).
This one-year statute of limitations can be interrupted by
either equitable tolling or statutory tolling. See Holland v.
Florida, 560 U.S. 631, 645 (2010) (“. . . we hold that § 2244(d)
is subject to equitable tolling in appropriate cases.”); see also
28
U.S.C.
§
2242(d)(2)
(setting
forth
the
requirements
for
statutory tolling under the AEDPA). In a case where either type of
tolling is warranted, the period of time which is tolled is not
counted against the running of the statute of limitations. See id.
1. Equitable Tolling
A habeas corpus petitioner is entitled to equitable tolling
of the statute of limitations only upon a showing that: (1) he has
been
pursuing
his
rights
diligently,
and
(2)
that
some
extraordinary circumstance stood in his way and prevented timely
filing. See Holland, 560 U.S. at 649; see also Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005). The burden of establishing these two
elements rests on the petitioner seeking equitable tolling. See
Pace, 544 U.S. at 418. Equitable tolling is warranted “only in
6
rare and exceptional circumstances . . . where the plaintiff is
actively misled by the defendant . . . or is prevented in some
extraordinary way from asserting his rights.” See Cousin, 310 F.3d
at 848 (internal quotations omitted).
Precedent for what constitutes extraordinary circumstances is
well established in case law. In Holland, cited by petitioner in
his objection, the court held that equitable tolling would be
warranted where an attorney was beyond negligent, and failed to
satisfy professional standards of care by ignoring the client’s
repeated requests to timely file a petition. See Holland, 560 U.S.
at 651-654. Likewise, in Wynn, the court held that equitable
tolling was warranted where the defendant was deceived by his
attorney into believing a timely motion to vacate had been filed,
when in fact, no such motion had been. See United States v. Wynn,
292 F.3d 226 (5th Cir. 2002).
Conversely, in Fisher, the court held that equitable tolling
was not warranted where petitioner was denied meaningful access to
the courts during a seventeen-day stay in a psychiatric ward in
which he was confined, medicated, and rendered legally blind after
being separated from his glasses. See Fisher v. Johnson, 174 F.3d
710, 715 (5th Cir. 1999). In Coleman, the court held that a “garden
variety claim of excusable neglect” was insufficient to warrant
equitable tolling. See Coleman v. Johnson, 184 F.3d 398, 402 (5th
Cir. 1999), cert. denied, 529 U.S. 1057 (2000).
7
Petitioner fails to meet his burden of establishing
existence of an extraordinary circumstance which prevented
from
timely
filing.
Distinct
from
the
him
Holland, petitioner does
not assert the untimely filing occurred due to a
failure
of
counsel to file in spite of repeated requests to do so.
In
fact, petitioner does not assert any circumstance at all which
might have prevented timely filing, let alone one which might
reach
the
requisite
level
of
extraordinary.
Accordingly,
petitioner is not entitled to equitable tolling.
Petitioner asserts that he “properly filed Collateral Review
(Application for Post-Conviction Relief) into the Trial Court.”
See Rec. Doc. 15 at 3. If such were to warrant tolling, it would
not
be
equitable
tolling,
but
rather,
the
statutory
tolling
provided for under the AEDPA.
2. Statutory Tolling
Under the statutory tolling scheme provided for under the
AEDPA, the running of the statute of limitations is interrupted
during the period of time in which state post-conviction relief or
collateral review is pending. See 28 U.S.C. § 2244(d)(2). For
statutory tolling to apply, the interrupting action must be: (1)
an application for state post-conviction or collateral review (2)
with respect to the pertinent judgment or claim, (3) which was
properly filed. See id.
8
An action is pending “as long as the ordinary state collateral
review process is ‘in continuance.’” Carey v. Saffold, 536 U.S.
214, 219-20 (2002); see also Williams v. Cain, 217 F.3d 303, 310
(holding that regarding § 2244(d)(2), a matter is pending until
further appellate review is unavailable under state procedure).
Collateral review refers to any “judicial reexamination of a
judgment or claim in a proceeding outside of the direct review
process.” Wall v. Kholi, 562 U.S. 545, 553 (2011). In the context
of § 2244(d)(2), the phrase refers to state court proceedings which
challenged the same judgment being challenged in the federal
petition. See Dilworth v. Johnson, 215 F.3d 497, 501 (5th Cir.
2000).
To be a pertinent judgment or claim, the interrupting state
action must have challenged the same conviction that is being
challenged in the federal petition. See Godfrey v. Dretke, 396
F.3d 681, 686-88 (5th Cir. 2005). Furthermore, the interrupting
action must have addressed the same substantive claims raised in
the federal petition. See id.
A properly filed application “is one that conforms with a
state's applicable procedural filing requirements.” Villegas v.
Johnson, 184 F.3d 467, 470 (5th Cir. 1999). Procedural filing
requirements
are
“those
prerequisites
that
must
be
satisfied
before a state court will allow a petition to be filed and accorded
some level of judicial review.” Id. at n. 2.
9
Accordingly, the post-conviction action must comport with
state procedural filing requirements, including timeliness. See
Pace, 544 U.S. at 413, (citing Artuz v. Bennett, 531 U.S. 4, 8
(2000)) (“‘an application is properly filed when its delivery and
acceptance are in compliance with the applicable laws and rules
governing filings’ including ‘time limits upon its delivery’”).
A state action which is not timely filed is not properly filed
for the purpose of statutory tolling. See Larry v. Dretke, 361
F.3d 890, 897 (5th Cir. 2004) (failure to timely file state
pleadings rendered pleadings not properly filed); see also Pace,
544 U.S. at 417 (“. . . time limits, no matter their form, are
‘filing conditions,’” such that when the state courts reject an
application for post-conviction relief as untimely, it cannot be
considered properly filed for the purpose of statutory tolling);
see also Wardlaw v. Cain, 541 F.3d 275, 278 (5th Cir. 2008) (citing
Pace,
544
U.S.
at
414)
(“When
a
post-conviction
petition
is
untimely under state law, ‘that is the end of the matter’ for
purposes of § 2244(d)(2).”).
An application for state post-conviction or other collateral
review that is filed after the statutory tolling period would have
expired does not trigger statutory tolling. See Scott v. Johnson,
227 F.3d 260, 263 (5th Cir. 2000) (holding that a state habeas
application not filed until after the statute of limitations
10
expired does not warrant tolling of the limitations period of §
2244(d)(2)).
In determining whether an application is timely for AEDPA
purposes, the mailbox rule is applied to pleadings filed by pro se
litigants. See Causey v. Cain, 450 F.3d 601, 604-05 (5th Cir.
2006). Under this rule, pleadings, including habeas proceedings
received by pro se litigants, are deemed filed on the date when
prison
officials
receive
the
pleading
from
the
prisoner
for
delivery to the court. See Coleman, 184 F.3d at 401.
While petitioner’s objection states that he is entitled to
tolling under the claim that “he properly filed Collateral Review
(Application for Post-Conviction Relief),” (Rec. Doc. 15 at 3) it
does not specify for which particular instance(s) he might be
entitled to such, or provide any calculation of tolling.
In the first instance, petitioner’s application for postconviction relief dated October 28, 2014, could have met the
requirements for statutory tolling for the duration for which it
was pending. It was a post-conviction petition for relief or other
collateral review. The state action was also “with respect to the
pertinent judgment or claim,” challenging the same judgment of
conviction
in
the
federal
petition.
Finally,
there
were
no
procedural improprieties which prevented filing and disposition.
The second instance which could have potentially triggered
statutory tolling was petitioner’s May 26, 2015 motion to withdraw
11
his previously filed state court application for post-conviction
review. However, that motion does not constitute post-conviction
or other collateral review, as it did not involve the reexamination
of a judgment or claim—it sought nothing more than to withdraw a
pleading which had already been ruled on and denied. Accordingly,
this event does not warrant statutory tolling.
In
the
third
instance,
petitioner’s
July
27,
2015
writ
application to the Louisiana First Circuit Court of Appeal does
not warrant statutory tolling because it was not properly filed.
This petition gave rise to a series of procedural improprieties,
caused by petitioner, as it asserted new claims not raised before
and did not follow any ruling by the trial court, let alone one
within the required thirty day period. See La. Ct. App. Unif. R.
1-3;
see
also
La.
Ct.
Unif.
App.
R.
4-3.
Because
the
writ
application was not properly filed, the requirements for statutory
tolling
are
not
met.
Therefore,
the
filing
of
this
writ
application does not warrant statutory tolling.
Finally,
petitioner’s
May
18,
2016,
submission
to
the
Louisiana Supreme Court does not warrant statutory tolling because
it was filed after statutory tolling would have expired under any
calculation. Furthermore, this submission was not properly filed
because it failed to meet the timeliness requirement set forth
under La. S. Ct. Rule X, § 5. For these reasons, petitioner’s
12
submission
to
the
Louisiana
Supreme
Court
fails
to
meet
the
statute
of
prompted
by
requirements necessary to warrant statutory tolling.
Accordingly,
limitations
has
in
run,
determining
only
the
whether
statutory
the
tolling
petitioner’s application for post-conviction relief dated October
28, 2014, should be applied. Petitioner’s conviction became final
on July 16, 2014, when he did not appeal his conviction before the
thirty days in which he had to do so expired. Accordingly, the
one-year statute of limitations began to run on July 17, 2014. It
continued
to
run
for
103
days,
until
petitioner
filed
his
application for post-conviction relief to the state trial court on
October 28, 2014. For so long as this action was pending, the
statute of limitations was statutorily tolled.
The trial court denied relief on December 2, 2014. Likewise,
the Louisiana First Circuit denied petitioner’s related writ on
March 9, 2015. On April 9, after thirty days had passed in which
petitioner failed to seek review of the Louisiana First Circuit’s
ruling, the action was no longer pending and the running of the
statute of limitations resumed. The statute of limitations then
ran for 262 days, from April 9, 2015, until December 28, 2015,
when it expired.
Alternatively, even if the July 27, 2015, writ application
did warrant statutory tolling, such tolling would not extend the
statute of limitations far enough to make the instant petition
13
timely. If such were the case, the statute of limitations would
have run for 103 days, from July 17, 2014, to October 28, 2014,
before being tolled for the initial post-conviction relief sought.
The running of the statute of limitations would have then resumed
April 9, 2015, and continued to run for 109 days, until July 27,
2015, when the improperly filed writ application was filed with
the Louisiana First Circuit. The statute of limitations would have
been tolled until November 4, 2015, which is thirty days after
review of that ruling was not sought. The running of the statute
of limitations would have resumed on November 5, 2015, and run for
153 days, until April 6, 2016, when it expired.
Petitioner
submitted
the
instant
habeas
corpus
petition,
after correcting certain deficiencies, on May 18, 2017. Pursuant
to the mailbox rule, it is deemed filed April 25, 2017. Regardless
of whether the statute of limitations expired on December 28, 2015,
or April 6, 2016, petitioner is effectively precluded from bringing
this petition because the statute of limitations has run.
B. Exhaustion
Generally, a state prisoner must exhaust all available state
remedies before he can apply for federal habeas relief. See Nobles,
127 F.3d at 419. “To have exhausted his state remedies, a habeas
petitioner must have fairly presented the substance of his claim
to the state courts.” Id. at 420. A petitioner fails to meet this
14
requirement if he “presents new legal theories or factual claims
in his federal habeas petition.” Id.
In
the
instant
case,
petitioner
has
not
satisfied
the
exhaustion requirement because he has presented new claims for
relief
in
his
federal
habeas
petition
which
were
not
fairly
presented in state court. Specifically, neither of the two claims
raised in the instant habeas petition were present in the fourclaim petition which was presented to the state courts. Compare
Rec. Doc. 4 at 8, 11 (instant habeas petition), with Rec. Doc. 42 at 25-26 (habeas petition brought before the state courts).
C. Procedural Default
A petitioner may be precluded from bringing a habeas corpus
petition by the doctrine of procedural default. See Nobles, 127
F.3d at 420. “If a state court clearly and expressly bases its
dismissal of a prisoner's claim on a state procedural rule, and
that procedural rule provides an independent and adequate ground
for the dismissal, the prisoner has procedurally defaulted his
federal habeas claim.” Id. Furthermore, “a procedural default also
occurs when a prisoner fails to exhaust available state remedies
and ‘the court to which the petitioner would be required to present
his claims in order to meet the exhaustion requirement would now
find the claims procedurally barred.’” Id.
15
Respondent does not allege that any of petitioner’s claims
are in procedural default. Likewise, petitioner does not address
procedural default in his objection.
Regardless, petitioner is in procedural default. As already
established, petitioner has failed to exhaust his claims in state
court. He would have to present his claims in the Louisiana Supreme
Court to exhaust state remedies. Petitioner is procedurally barred
from doing so because the time to file has expired, as noted in
that
court’s
denial
of
his
prior
application.
Therefore,
petitioner is in procedural default.
Furthermore,
the
Louisiana
Supreme
Court’s
denial
of
petitioner’s prior application renders petitioner in procedural
default because the court clearly and expressly based its dismissal
of Wright's claim on La. S. Ct. Rule X § 5, and that procedural
rule provides an independent and adequate ground for the dismissal.
In
a
second
potential
instance,
one
could
argue
that
petitioner procedurally defaulted his claim when he filed his
second writ application to the Louisiana First Circuit. This
argument would be based on the notion that petitioner defaulted
when he failed to comply with the May 8, 2015, deadline, which the
court
stipulated
after
denying
petitioner’s
first
petition.
However, this instance does not necessarily create procedural
default, for two reasons. First, this court-imposed deadline may
not necessarily be a state procedural rule. Second, it may not
16
create default because the court did not clearly and expressly
base its dismissal on a state procedural rule—the court in this
case denied the application without written reasons.
New Orleans, Louisiana this 16th day of August, 2019
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
17
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