Westley v. Vannoy et al

Filing 19

ORDER AND REASONS ADOPTING 15 REPORT AND RECOMMENDATIONS: IT IS ORDERED that the petitioner's objections are OVERRULED; IT IS FURTHER ORDERED that the Magistrate Judge's Report and Recommendation are ADOPTED as the Court's opinion; and IT IS FURTHER ORDERED that the petition for habeas 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
JAMAL WESTLEY

CIVIL ACTION

VERSUS

NO.

DARREL VANNOY

18-1994

SECTION “B”(1)
ORDER AND REASONS

Before

the

Court

are

the

Magistrate

Judge’s

Report

and

Recommendation to dismiss petitioner Jamal Westley’s petition for
habeas corpus relief (Rec. Doc. 15), and petitioner’s objections
to the Report and Recommendation (Rec. Doc. 16). For the reasons
discussed below,
IT IS ORDERED that the petitioner’s objections are OVERRULED;
IT IS FURTHER ORDERED that the Magistrate Judge’s Report
and Recommendation are ADOPTED as the Court’s opinion; and
IT IS FURTHER ORDERED that the petition for habeas relief is
DISMISSED WITH PREJUDICE.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Jamal

Westley

(“petitioner”)

is

an

inmate

currently

incarcerated at Louisiana State Penitentiary in Angola, Louisiana.
See Rec. Doc. 4-1 at 1. On May 24, 2013, petitioner was convicted
of two counts of simple burglary of an inhabited dwelling, along
with one count of each of the following offenses: forcible rape,
access device fraud, armed robbery, and aggravated burglary. See
Rec. Doc. 15 at 1. On June 18, 2013, petitioner was sentenced to
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twelve years on each count of simple burglary of an inhabited
dwelling, forty years on the forcible rape conviction, six months
on the access device fraud conviction, fifty years on the armed
robbery conviction, and thirty years on the aggravated burglary
conviction. See id. The court ordered that these sentences be
served concurrently. See id. On August 15, 2013, petitioner pleaded
guilty to being a second offender on the armed robbery conviction
and was resentenced to a concurrent term of ninety-nine years
imprisonment. See id.
On May 22, 2016, petitioner filed an application for postconviction relief with the state trial court seeking an out-oftime appeal. See id. On July 14, 2016, the application was denied
as untimely. See id. On September 1, 2016, the Louisiana Fourth
Circuit Court of Appeal similarly denied him relief. See id. at 12.

On

February

9,

2018,

the

Louisiana

Supreme

Court

denied

petitioner’s related writ, holding that the application was not
timely filed in the state district court and that petitioner had
failed to show that an exception applied. See id. at 2. On February
19, 2018, petitioner filed the instant federal habeas corpus
petition, asserting that he received ineffective assistance of
counsel when counsel failed to file a direct appeal. See Rec. Doc.
4-1 at 18, 22.
LAW AND FINDINGS
A. Standard of Review
2

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

habeas

proceedings

are

subject

to

the

rules

prescribed by the Antiterrorism and Effective Death 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)). Because the instant
petition is untimely, it is unnecessary to address the exhaustion
and procedural default requirements.
B. Timeliness
The AEDPA imposes a one-year statute of limitations for
petitioners seeking relief under 28 U.S.C. § 2254. See 28 U.S.C.
2244(d)(1). Because petitioner’s claim does not involve a statecreated impediment or a newly recognized constitutional right,
neither § 2244(d)(1)(B) nor (C) apply. Accordingly, the timeliness

3

of

the

instant

petition

need

only

be

considered

under

§

2244(d)(1)(A) and (D).
First, for a habeas corpus petition to be timely under §
2244(d)(1)(A), the AEDPA requires that it be filed within one year
of the date that the judgement became final. See 28 U.S.C. §
2244(d)(1)(A); see also Duncan v. Walker, 533 U.S. 167, 179-80
(2001). A judgement 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 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).
To be timely under § 2244(d)(1)(A), petitioner would have to
have filed his federal petition within a year of his conviction’s
finality. Petitioner’s conviction became final when the time in
which he had to appeal expired and no appeal had been taken.
Because

petitioner’s

conviction

became

final

on September

16, 2013, petitioner should have filed the instant petition on or
before September 16, 2014. However, he did not file the petition
until February 19, 2018. See Rec. Doc. 4-1 at 22. Accordingly,
under the foregoing subsection the petition is time-barred.

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Second, under § 2244(d)(1)(D), a petition must be brought
within one year of “the date on which the factual predicate of the
claim or claims presented could have been discovered through the
exercise

of

due

diligence.”

28

U.S.C.

§

2244(d)(1)(D).

“‘[D]iligence can be shown by prompt action on the part of the
petitioner as soon as he is in a position to realize’ that he
should act.” United States v. Rodriguez, 858 F.3d 960, 962 (5th
Cir. 2017) (quoting
(2005)).

While

Johnson v. United States, 544 U.S. 295,

attorney

abandonment

may

constitute

factual

predicate for a petitioner to proceed under § 2244(d)(1)(D),
“[c]omplete inactivity in the face of no communication from counsel
does not constitute diligence.” See id. at 963.
The timing of petitioner’s efforts is crucial to establishing
the requisite diligence. See id. at 962 (“[t]he important thing is
to identify a particular time when . . . diligence is in order.”)
(internal quotations omitted). When a petitioner alleges a failure
of counsel to file an appeal, the length of time between the
conviction and petitioner’s subsequent efforts is determinative of
whether the petitioner exercised diligence. See id. at 963-64
(holding that petitioner who waited fifteen months to inquire about
his

appeal

status

did

not

exercise

reasonable

diligence).

Consistent with Rodriguez, the Seventh Circuit has held that in
the context of a petitioner alleging a failure of counsel to file
an appeal, the relevant inquiry is “how long a duly diligent
5

prisoner would take to discover that his lawyer had not filed a
notice of appeal.” See Ryan v. United States, 657 F.3d 604, 607
(7th Cir. 2011).
If the court were to apply § 2244(d)(1)(D), the instant
petition would still not be timely. Under this subsection, the
statute of limitations would have commenced on “the date on which
the factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.” 28 U.S.C.
2244(d)(1)(D).

Following

precedent

set

forth

in

Rodriguez,

Petitioner should have discovered that no appeal had been filed
within fifteen months of the filing deadline—in other words, by
December 16, 2014. See Rodriguez, 858 F.3d at 963-64. Accordingly,
petitioner would have to have filed either an application for
state-post conviction relief or the instant petition by December
16,

2015.

However,

petitioner

did

not

file

for

state

post-

conviction relief until May 22, 2016, and did not file his federal
petition

until

February

19,

2018.

See

Rec.

Doc.

4-1

at

22.

Accordingly, this petition is time-barred.
C. Actual Innocence
The one-year statute of limitations can be overcome by a
showing of actual innocence. See McQuiggin v. Perkins, 569 U.S.
383, 386 (2013). (“We hold that actual innocence, if proved, serves
as a gateway through which a petitioner may pass whether the
impediment is a procedural bar . . . or . . . expiration of the
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statute of limitations.”). To overcome the statute of limitations
by actual innocence, a petitioner must “persuade[] the district
court that in light of new evidence, no juror, acting reasonably,
would have voted to find him guilty beyond a reasonable doubt.”
See id. (citing Schlup v. Delo, 513 U.S. 298, 329 (1995)).
Here, petitioner cannot overcome the statute of limitations
because he did not assert actual innocence in his petition or his
objection,

let

alone

present

any

“new

evidence”

required

by

Perkins. To the contrary, in petitioner’s objection, he writes
that “[he] may or may not be actually innocent of any crime” and
that “he especially cannot assert his actual innocence at this
time.” See Rec. Doc. 16 at 2.
D. Tolling
The statute of limitations can be interrupted by either
statutory tolling or equitable tolling. See 28 U.S.C. § 2244(d)(2)
(setting forth the requirements for statutory tolling under the
AEDPA); see also Holland v. Florida, 560 U.S. 631, 645 (2010) (“.
. . we hold that § 2244(d) is subject to equitable tolling in
appropriate cases.”).
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)
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an application for state post-conviction or collateral review (2)
with respect to the pertinent judgement or claim, (3) which was
properly filed. See id. 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 expired does not warrant tolling of the
limitations period of § 2244(d)(2)).
Here, petitioner has not met the requirements to warrant
statutory tolling, as there was no application for post-conviction
relief pending before the state courts during the time the statute
of limitations was running under either §§ 2244(d)(1)(A) or (D).
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) 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 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 v. Lensing, 310 F.3d
8

843, 848 (5th Cir. 2002) (internal quotations omitted). Claims for
equitable tolling based on grounds such as ignorance of the law,
unfamiliarity with the legal process, illiteracy, or a lack of
knowledge of filing deadlines do not warrant equitable tolling.
See Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th Cir.
1991).
Precedent for what constitutes extraordinary circumstances is
well established in case law. In Holland, the Supreme Court held
that equitable tolling would be warranted where an attorney ignored
the client’s repeated requests for information and to timely file
a petition, over a period of years. See Holland, 560 U.S. at 652.
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).
Here, petitioner has not met the requirements necessary to
warrant equitable tolling of the statute of limitations. Liberally
construed,

petitioner’s

federal

petition

suggests

that

the

extraordinary circumstance that prevented his timely filing was
his attorney’s having misled him into believing that an appeal was
filed, when no such appeal had been in fact filed. However,
petitioner offers no evidence of such a promise having been made.
In stark contrast to Wynn, the record is utterly devoid of any
9

evidence

suggesting

that

counsel

actively

misled

or

deceived

petitioner. Furthermore, and distinct from Holland, no diligent
efforts were put forth by petitioner. Conversely, the facts of the
instant case present no indication of extraordinary circumstances
which prevented timely filing despite petitioner’s diligence.
Petitioner’s objection, liberally construed, asserts that he
is entitled to equitable tolling on the grounds of his “mental
capacity,” as he is “mentally incompetent in the law.” See Rec.
Doc. 16 at 2. However, this does not constitute an extraordinary
circumstance at law, and even if it did, petitioner has made no
showing of diligence as required by law to warrant equitable
tolling. Furthermore, as the Fifth Circuit expressly held in
Barrow, ignorance of the law, or unfamiliarity with the legal
process

or

deadlines,

does

not

warrant

equitable

tolling.

Accordingly, petitioner’s claim that he “does not possess any
working knowledge of the law, rules and/or procedures, and . . .
is mentally incompetent in the law” (Rec. Doc. 16 at 2) is
irrelevant and unconvincing for the purposes of equitable tolling.
As there has been no showing of actual innocence or that
grounds for statutory or equitable tolling exist, the instant
petition is not timely.
E. Competency to Stand Trial
“[T]he Constitution does not permit trial of an individual
who lacks ‘mental competency.’ ” Austin v. Davis, 876 F.3d 757,
10

777 (5th Cir. 2017) (citing Indiana v. Edwards, 554 U.S. 164, 170
(2008)). An individual is mentally competent to stand trial if:
(1) he has sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding; and (2) he has
a rational as well as factual understanding of the proceedings
against him. See Austin, 876 U.S. at 777 (citing Dusky v. United
States, 362 U.S. 402, 402 (1960).
Here, petitioner asserts that “[his] capacity to stand trial
was never brought to the trial court when it should have been.”
Rec. Doc. 16 at 2. Petitioner is precluded from bringing this
claim, like all claims in his petition, because his petition is
time-barred. Regardless, petitioner does not offer any evidence of
his being incompetent to stand trial. He has not demonstrated that
he lacked sufficient ability to consult with his lawyer at trial
with a reasonable degree of understanding, nor that he lacked a
rational as well as factual understanding of the proceedings
against him. Accordingly, this claim is without merit.

New Orleans, Louisiana this 16th day of August, 2019

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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