Owens v. Vannoy et al

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATIONS 12 . 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 AD OPTS the Magistrate Judge's recommendation and Petitioner Jamar E. Owens' petition for issuance of a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 is DISMISSED WITH PREJUDICE. Signed by Chief Judge Nannette Jolivette Brown on 9/8/20.(cg)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMAR E. OWENS

CIVIL ACTION

VERSUS

NO. 19-10816

DARREL VANNOY, WARDEN

SECTION “G”(2)
ORDER AND REASONS

Before the Court are Petitioner Jamar E. Owens’s (“Petitioner”) objections 1 to the Report
and Recommendation of the United States Magistrate Judge assigned to this case. 2 Petitioner, a
state prisoner incarcerated at the Louisiana State Penitentiary in Angola, Louisiana, filed a petition
for writ of habeas corpus under 28 U.S.C. § 2254.3 The Magistrate Judge recommended that this
Court dismiss the petition with prejudice because it was not timely filed. 4 Petitioner objects to the
Magistrate Judge’s recommendation. 5 After reviewing the petition, the State’s response, the
Magistrate Judge’s Report and Recommendation, Petitioner’s 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. 13.

2

Rec. Doc. 12.

3

Rec. Doc. 1.

4

Rec. Doc. 12.

5

Rec. Doc. 13.

1

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I. Background
A.

Factual Background
On March 2, 2012, Petitioner and two co-defendants were charged in Jefferson Parish in a

nine-count bill of information. 6 Amendments to the bill of information resulted in Petitioner being
charged with one count of armed robbery, one count of attempted armed robbery, one count of
aggravated battery, and two counts of possession of a weapon by a convicted felon. 7 On July 24,
2013, a jury found Petitioner guilty as charged. 8 On August 16, 2013, the state trial court sentenced
Petitioner to a term of ninety-nine years in prison for armed robbery, forty-five years in prison for
attempted armed robbery, ten years in prison for aggravated battery, and ten years in prison for
each of the two counts of possession of a weapon by a convicted felon. 9 The court ordered the
sentences to run concurrently and all but the aggravated battery charge to be served without benefit
of parole, probation or suspension of sentence. 10
The Louisiana Fifth Circuit Court of Appeal affirmed Petitioner’s conviction and sentence
on September 24, 2014. 11 On October 2, 2015, the Louisiana Supreme Court denied Petitioner’s
related writ application. 12 The Petitioner did not file a writ application with the United States
Supreme Court.

6

State Rec., Vol. I of VII, Original Bill of Information, March 2, 2012.

7

State Rec., Vol. I of VII, Amended Bill of Information, June 14, 2013.

8

State Rec., Vol. I of V, Jury Verdict, July 24, 2013.

9

State Rec., Vol. I of VII, Sentencing Minutes, August 16, 2013.

10

Id.

11

State v. Owens, 14-KA-41 (La. App. 5 Cir. 9/24/14); 151 So. 3d 86.

12

State v. Owens, 14–KO–2252 (La. 10/2/15); 178 So. 3d 582.

2

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On July 7, 2016, the Petitioner submitted an application for post-conviction relief to the
state trial court. 13 On October 5, 2016, the state trial court denied the Petitioner’s application. 14 On
November 16, 2016, the Louisiana Fifth Circuit denied Petitioner’s related writ application finding
no error in the state trial court’s ruling. 15 On April 2, 2018, the Louisiana Supreme Court denied
Petitioner’s subsequent writ application. 16
On May 30, 2019, Petitioner filed the instant federal application seeking habeas corpus
relief pursuant to 28 U.S.C. § 2254. 17 In the application, Petitioner argues the following: (1) he
was denied a fair trial because of prosecutorial misconduct when the prosecutor shifted the burden
during closing arguments; (2) the state trial court abused its discretion when it denied petitioner’s
Confrontation Clause objection to the admission of recorded statements made during a telephone
call from the jail; (3) he was denied effective assistance of counsel based on a conflict of interest;
(4) his confrontation rights were violated when several state witnesses testified to information
provided by a witness who was not present; and (5) prosecutorial and judicial misconduct occurred
when other crimes evidence was admitted at trial. 18 In his supporting memorandum, Petitioner also
claims that he lost some of his legal paperwork in November 2017, and requests that this Court
excuse the untimely filing of the federal petition. 19

13

State Rec. Vol. I of VII, Application for Post-Conviction Relief, July 7, 2016.

14

State Rec. Vol. I of VII, Trial court Order, October 5, 2016.

15

State Rec. Vol. II of VII, 5th Cir. Order, 16-KH-632, November 16, 2016.

16

State ex rel. Owens v. State, 2018 WL 1611284, (La. Apr. 2, 2018).

17

Rec. Doc. 1.

18

Id. Rec. Doc. 9, 13.

19

Id.

3

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On July 17, 2019, the State filed a response in opposition to Petitioner’s federal petition
asserting that the petition is time-barred and that Petitioner failed to establish entitlement to
equitable tolling. 20 The State also claims that the Louisiana State Penitentiary has no administrative
grievance or property claims from Petitioner in the prison system despite Petitioner’s assertion that
he wrote prison officials to locate the allegedly lost paperwork. 21 In reply to the State’s opposition,
Petitioner reasserts his request for equitable tolling for the time he spent attempting to locate his
lost paperwork after November 23, 2017. 22 He claims that the paperwork was misplaced when he
was transferred to administrative segregation, which he asserts was outside of his control. 23 He
claims that after the paperwork was returned to him, he was able to file his federal petition. 24
B.

Report and Recommendation Findings
On November 18, 2019, the Magistrate Judge recommended that the petition be dismissed

with prejudice as it was not timely filed. 25 The Magistrate Judge noted that under Subsection A of
the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a petitioner must file a
habeas corpus petition within one year of the date his conviction became final. 26 The Magistrate
Judge determined that Petitioner’s conviction became final on December 31, 2015, ninety days
after the Louisiana Supreme Court denied Petitioner’s direct-review writ application. 27 As such,
20

Rec. Doc. 9 at 9–10.

21

Id. at 10.

22

Rec. Doc. 11 at 7–8.

23

Id.

24

Id.

25

Rec. Doc. 12 at 1.

26

Id. at 8.

27

Id. at 9.

4

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Petitioner was required to file his federal habeas corpus petition by January 3, 2017, unless the
statute of limitations was extended through tolling. 28
The Magistrate Judge determined that Petitioner was entitled to one period of statutory
tolling under 28 U.S.C. § 2244(d)(2), which establishes that “[t]he 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 under this
subsection.” 29 In this case, the one-year AEDPA statute of limitations began to run on January 1,
2016, the day after the Petitioner’s conviction became final under federal law. 30 The period ran
uninterrupted for 188 days, until July 7, 2016, when Petitioner filed an application for postconviction relief before the state trial court. 31 The statute of limitations remained tolled until April
2, 2018, when the Louisiana Supreme Court denied Petitioner’s related writ application. 32 The
statute of limitations began to run again on April 3, 2018, and continued to run uninterrupted for
the remaining 177 days, until September 26, 2018, when it expired. 33
The Magistrate Judge determined that Petitioner had no properly filed application for state
post-conviction relief or other collateral review pending during that time period to toll the AEDPA
one-year statute of limitations for a second time. 34 The Petitioner’s federal petition was filed under

28

Id. at 9, n.24.

29

Id. (quoting 28 U.S.C. § 2244(d)(2)).

30

Id. at 17.

31

Id.

32

Id.

33

Id. at 17.

34

Id. at 17.

5

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the mailbox rule on May 30, 3019, which was over eight months after the AEDPA one-year filing
period expired September 26, 2018. 35 Therefore, the Magistrate Judge found that the petition was
untimely even after accounting for statutory tolling under 28 U.S.C. § 2244(d)(2). 36
The Magistrate Judge also considered whether Petitioner was entitled to equitable tolling. 37
The Magistrate Judge noted that the Supreme Court has held that the AEDPA’s statute of
limitations may be equitably tolled where the Petitioner shows both that (1) he has been pursuing
his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented
timely filing. 38 Petitioner argued that the limitations period should be equitably tolled because he
lost some of his paperwork on or about November 23, 2017, and was unable to retrieve it from
prison officials. The Magistrate Judge found several similar cases in various federal district courts
within the Fifth Circuit Court of Appeals that held that the loss of legal paperwork at a prison is
not an extraordinary circumstance for purposes of equitable tolling. 39 The Magistrate Judge
concluded that because Petitioner had not shown any “extraordinary circumstance” had prevented
him from filing his federal application within the one-year limitations period, Petitioner was not
entitled to equitable tolling. 40

35

Id. at 18.

36

Id.

37

Id. at 10.

38

Id. (citing Pace v. DiGuglielmo, 544 U. S. 408, 418 (2005)).

39
Id. at 10–11 (citing Powell v. Kelly, 2007 WL 1112613 (S.D. Miss. Apr. 10, 2007); Dugas v. Cain, 2010
WL 2816247 (W.D. La. May 25, 2010)).
40

Id. at 14.

6

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Finally, the Magistrate Judge noted that Petitioner did not assert a claim of actual innocence
nor did he bring new, reliable evidence calling into question the validity of his conviction. 41 After
accounting for tolling and because Petitioner failed to show that he was actually innocent of the
crimes for which he was convicted, the Magistrate Judge determined the federal application for
habeas corpus relief had to be filed no later than September 26, 2018, in order to be timely. 42
Accordingly, the Magistrate Judge concluded that Petitioner’s application filed on May 30, 2019
is untimely, and recommended that the petition be dismissed with prejudice. 43
II. Objections
A

Petitioner’s Objection
Petitioner objects to the Magistrate Judge’s Report and Recommendation and argues that

he is entitled to equitable tolling beginning before September 26, 2018, which is when he agrees
the statute of limitations began to run after accounting for statutory tolling. 44 Petitioner asserts that
he lost his legal paperwork after he was placed in administrative segregation and then transferred
to a new location. 45 Petitioner states that he could not litigate his claims in court without his
paperwork, and he worked for one year to retrieve his paperwork

46

Petitioner argues that the loss

of his paperwork is an extraordinary circumstance and his pursuit to locate it demonstrates that he
has been pursuing his rights diligently. 47

41

Id. at 18.

42

Id. at 19.

43

Id.

44

Rec. Doc. 13.

45

Id. at 4.

46

Id.

47

Id. at 6.

7

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B.

The State’s Opposition
Despite receiving electronic notice 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 the 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. 48 The District Judge must
“determine de novo any part of the [Report and Recommendation] that has been properly objected
to.” 49 A District Court’s review is limited to plain error of parts of the report which are not properly
objected to. 50
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

48

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

49

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

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).
50

8

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D. the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence. 51
The Magistrate Judge applied the limitation period established by Subsection A. Petitioner
does not object to this determination or argue that any other subsection should apply. Therefore,
reviewing for plain error, and finding none, the Court adopts the Magistrate Judge’s finding that
Petitioner is not entitled to application of the other subsections.
B.

Timeliness Under Subsection A
The Magistrate Judge found that the conviction became final on December 31, 2015, ninety

days after the Louisiana Supreme Court denied Petitioner’s direct-review writ application. 52
Petitioner does not object to this determination or argue that his conviction became final on any
other date. 53 Accordingly, the Court reviews this issue for plain error.
Applying Subsection A, the United States Fifth Circuit Court of Appeal has explained that
“[w]hen a habeas petitioner has pursued relief on direct appeal through his state’s highest court,
his conviction becomes final ninety days after the highest court’s judgment is entered, upon the
expiration of time for filing an application for writ of certiorari with the United States Supreme
Court.” 54 On October 2, 2015, the Louisiana Supreme Court denied Petitioner’s writ application
on direct appeal. 55 Petitioner’s conviction became final ninety days later, on December 31, 2015,
when the time expired for filing an application for writ of certiorari with the United States Supreme

51

28 U.S.C. § 2244(d)(1).

52

Rec. Doc. 12 at 8.

53

Rec. Doc. 13.

54

Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (internal citations omitted).

55

Hernandez, 750 So. 2d at 194.

9

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Court. Accordingly, Petitioner had until January 3, 2017, to file his federal habeas petition unless
he can establish entitlement to tolling. 56
1. Statutory Tolling
The Magistrate Judge found that Petitioner is entitled to one period of statutory tolling. 57
Petitioner does not object to this determination. 58 Accordingly, the Court reviews for plain error.
The AEDPA provides for statutory tolling throughout “[t]he 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.” 59 The statute of limitations period began to run on January 1, 2016,
and it ran without interruption for 188 days; until July 7, 2016, when Petitioner submitted his state
court application for post-conviction relief. The state court proceeding remained pending and
tolled the one-year AEDPA filing period until April 2, 2018, when the Louisiana Supreme Court
denied Petitioner’s related writ application. The statute of limitations began to run again on April
3, 2018, continuing to run uninterrupted for the remaining 177 days, until September 26, 2018,
when it expired. Between April 3, 2018 and September 26, 2018, Petitioner did not file any other
applications for state post-conviction relief or collateral review to further toll the statute of
limitations. Accordingly, the Court adopts the Magistrate Judge’s finding that Petitioner is entitled
to one statutory tolling period between July 7, 2016 to April 2, 2018.

The last day of the one-year period was Saturday, December 31, 2016. The final day therefore
fell on the next business day, Tuesday, January 3, 2017, because Monday, January 2, 2017, was a state
holiday. See La. Rev. Stat. § 1:55(A)(4) (declaring that when January 1 falls on a Sunday, the next day
is a holiday); La. Code Crim. P. art. 13 (when the final day of a period is a Saturday or Sunday, the end
of the period falls to the next business day); Fed. R. Civ. P. 6.
56

57

Rec. Doc. 12 at 17.

58

Rec. Doc. 13

59

28 U.S.C. § 2255(d)(2).

10

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2. Equitable Tolling
The Magistrate Judge found that Petitioner is not entitled to equitable tolling. 60 Petitioner
objects to this determination. 61 Petitioner states that he lost his legal paperwork after being placed
in administrative segregation and then transferred to a new location. 62 Petitioner argues that he
could not litigate his claims in court without his paperwork. 63 Accordingly, the Court reviews this
issue de novo.
The United States Supreme Court has held that, in rare circumstances where a petitioner’s
habeas corpus application would be otherwise untimely, the AEDPA’s statute of limitations may
be subject to equitable tolling. 64 To establish entitlement to equitable tolling, a petitioner must
show that: “(1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance
stood in his way and prevented timely filing.” 65 A petitioner bears the burden of establishing
entitlement to equitable tolling and “must demonstrate rare and exceptional circumstances
warranting application of the doctrine.” 66
Here, Petitioner argues that he is entitled to equitable tolling because the loss of his
paperwork during his administrative segregation is an extraordinary circumstance and his pursuit
to locate it demonstrates that he has been pursuing his rights diligently. 67 Petitioner rests his
60

Rec. Doc. 12 at 14.

61

Rec. Doc. 13.

62

Id. at 4.

63

Id.

64

Holland, 560 U.S. at 645.

65

Id. at 649 (internal citations and quotation marks omitted).

66

Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002).

67

Rec. Doc. 13 at 6.

11

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argument only on the fact that he has been unable to locate his legal paperwork after an unspecified
time period in administrative segregation beginning around November 2017. Petitioner does not
argue that he was in administrative segregation while the statute of limitations ran from April 3,
2018 and September 26, 2018; nor does Petitioner advance any reasoning to support the claim that
he was unable to file a petition without his paperwork. Therefore, Petitioner has not shown that
any extraordinary circumstance prevented him from filing his petition within the limitations
period. Accordingly, on de novo review, the Court finds that Petitioner is not entitled to equitable
tolling.
3.

Actual Innocence

The Magistrate Judge found that Petitioner did not assert a claim of actual innocence. 69
Petitioner does not object to this determination. 70 Accordingly, the Court reviews for plain error.
In McQuiggin v. Perkins, the United States Supreme Court held that “actual innocence, if
proved, serves as a gateway through which a [habeas] petitioner may pass whether the impediment
is a procedural bar . . . or expiration of the statute of limitations.”71 The Court cautioned, however,
that this exception “applies to a severely confined category: cases in which new evidence shows
‘it is more likely than not that no reasonable juror would have convicted [the petitioner].’” 72 The
Supreme Court has explained:
It is not the district court’s independent judgment as to whether reasonable doubt
exists that the standard addresses; rather the standard requires the district court to
make a probabilistic determination about what reasonable, properly instructed
jurors would do. Thus, a petitioner does not meet the threshold requirement unless
69

Rec. Doc. 12 at 18, n.31.

70

Rec. Doc. 13.

71

McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).

72

Id. at 395 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).

12

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he persuades the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt. 73
Petitioner does not argue that he is actually innocent of the crimes for which he was
convicted, nor does he present any new evidence to establish his innocence. Therefore, Petitioner
has not established that the “actual innocence” exception is applicable here.
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 Magistrate Judge’s
recommendation and Petitioner Jamar E. Owens’ petition for issuance of a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254 is DISMISSED WITH PREJUDICE.

8th
NEW ORLEANS, LOUISIANA, this ____ day of September, 2020.

__________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

73

Schlup, 513 U.S. at 329.

13