Johnson v. McCain

Filing 13

ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS filed by Carl Johnson. For the reasons set forth herein, Petitioners application for habeas corpus relief is DENIED as untimely and that this proceeding is DISMISSED WITH PREJUDICE. If Petitioner seeks to pursue an appeal in this case, a certificate of appealability will be denied. Signed by Judge John W. deGravelles on 9/22/2020. (KMW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CARL JOHNSON (#535210)

CIVIL ACTION

VERSUS
W.S. MCCAIN, ET AL.

NO. 17-309-JWD-SDJ
AND

CARL JOHNSON (#535210)

CIVIL ACTION

VERSUS
W.S. MCCAIN, ET AL.

NO. 17-325-JWD-SDJ

ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS
Before this Court is the application of Petitioner Carl Johnson for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. There is no need for oral argument or for an evidentiary hearing.
For the following reasons, Petitioner’s application is DENIED as untimely.
I.

Procedural History
On July 24, 2008, Petitioner was charged via bill of information in the 19th Judicial District

Court for the Parish of East Baton Rouge, State of Louisiana, with four counts of armed robbery.1
On April 6, 2009, in exchange for the State’s dropping one of the counts and agreeing not to file a
habitual offender bill, Petitioner pled guilty to three counts of armed robbery.2 He was sentenced
on the same day to 22 years imprisonment at hard labor without the benefit of parole, probation,
or suspension of sentence.3

1

17-325, R. Doc. 14-1, p. 56.
17-325, R. Doc. 14-1, p. 60.
3
17-325, R. Doc. 14-1, p. 60.
2

1

Petitioner was appointed appeal counsel through the Louisiana Appellate Project. Appeal
counsel filed a motion for an appeal and subsequently filed a timely brief with the Louisiana First
Circuit Court of Appeal. Appeal counsel’s brief advised the First Circuit that there were no nonfrivolous issues for appeal. On December 31, 2012, the First Circuit affirmed Petitioner’s
conviction.4 Petitioner did not seek further review with the Louisiana Supreme Court.
Subsequently, on August 8, 2013, Petitioner filed a counseled application for postconviction relief in the state trial court.5 Therein, Petitioner asserted that he had received
ineffective assistance of counsel because trial counsel failed to thoroughly investigate his case
before urging him to plead guilty. On December 9, 2014, the trial court denied Petitioner’s
application for post-conviction relief.6 Thereafter, Petitioner filed for review with the First Circuit,
which denied his application on June 22, 2015. Petitioner’s writ of supervisory review in the
Louisiana Supreme Court was denied on the merits on May 20, 2016.7
On May 11, 2017, Petitioner filed an application for a writ of habeas corpus in the Western
District of Louisiana. One day later, on May 12, 2017, Petitioner filed the same application for a
writ of habeas corpus in this Court.8 On June 6, 2017, the Western District of Louisiana issued an
Order transferring Petitioner’s habeas application to the Middle District of Louisiana.9 On March
13, 2018, this Court issued an Order consolidating both applications under docket 17-309.10 In the
instant application for writ of habeas corpus Petitioner asserts ineffective assistance of counsel as
his only ground for relief.

4

State v. Johnson, 2012-0811 (La. App. 1 Cir. 12/31/2012), 2012 WL 6738540.
R. Doc. 15, p. 25.
6
R. Doc. 14-1, p. 21.
7
R. Doc. 14-2, p.111-112.
8
17-325, R. Doc. 1.
9
17-309, R. Doc. 3.
10
17-309, R. Doc. 5.
5

2

II.

Timeliness
Pursuant to 28 U.S.C. § 2244(d), there is a one-year statute of limitations applicable to

federal habeas corpus claims brought by prisoners in state custody. This limitations period begins
to run on the date upon which the judgment becomes final through the conclusion of direct review
or through the expiration of time for seeking such review.11 If a petitioner stops the direct appeal
process before she has proceeded through all available state courts, “the conviction becomes final
when the time for seeking further direct review in the state court expires.”12 After a petitioner has
proceeded through all stages of direct appellate review in the state courts, the period of direct
review also includes the petitioner’s right to seek discretionary review before the United States
Supreme Court. As a result, after a ruling by the state’s highest court on direct appeal, a petitioner’s
judgment becomes final when the United States Supreme Court issues a decision denying
discretionary review or, if no application for review is made, upon the conclusion of the 90-day
time period for seeking such review.13
Upon the finality of a petitioner’s conviction, the one-year limitations period for filing a
federal habeas corpus petition commences to run. The federal limitations statute provides,
however, that the time during which a subsequent “properly filed” application for state postconviction or other collateral review is thereafter “pending” in the state courts with respect to the
pertinent judgment or claim shall not be counted toward any part of the one-year limitations
period.14 As a corollary to this rule, any time during which there are no properly filed postconviction or collateral review proceedings pending before the state courts does count toward the
passage of the one-year period. To be considered “properly filed” for purposes of § 2244(d)(2), an

11

28 U.S.C. § 2244(d)(1)(A).
See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003).
13
See id.
14
28 U.S.C. § 2244(d)(2).
12

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application’s delivery and acceptance must be in compliance with the applicable laws and rules
governing filings.15 A state post-conviction relief application is considered to be “pending” (1)
while it is before a state court for review and also (2) during the interval of time after a lower state
court’s disposition of an application (thirty days in the State of Louisiana, unless an allowable
extension is granted) while the petitioner is procedurally authorized by state law to file a timely
application for further appellate review at the next level of state consideration.16
Petitioner’s conviction became final on January 30, 2013, which was 30 days after the First
Circuit decision affirming his conviction on direct review, and the last day he could have sought
further review with the Louisiana Supreme Court. Approximately 190 days of untolled time
elapsed until Petitioner properly filed his application for post-conviction relief at the 19th Judicial
District Court on August 8, 2013. The statute of limitations remained tolled until the Louisiana
Supreme Court ultimately denied his writ application on May 20, 2016. Approximately 357
untolled days passed until Petitioner filed the instant petition for habeas relief. Accordingly, more
than a year elapsed (547 days) during which Petitioner did not have any properly filed applications
for post-conviction or other collateral review pending before the state courts, and Petitioner’s writ
of habeas corpus in this Court is untimely.
Having found Petitioner’s application to be untimely, this Court must dismiss the same
pursuant to 28 U.S.C. § 2244(d) unless he can establish that he is entitled statutory tolling of the
limitations period under § 2244(d)(1)(B) B because there was a state-created impediment to timely
filing B or that he is entitled to equitable tolling.

15
16

Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005), citing Artuz v. Bennett, 531 U.S. 4, 8 (2000).
Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001).

4

To establish entitlement to statutory tolling under 28 U.S.C. § 2244(d)(1)(B), Petitioner
must show that some state action, in violation of the Constitution or federal law, prevented him
from filing a timely petition.17 Petitioner has made no such showing in this case. Accordingly,
there is no legal or factual basis in the record for a finding that Petitioner is entitled to statutory
tolling under this section.
Nor is there any basis in the record for equitable tolling in this case. It is the petitioner’s
burden to demonstrate that equitable tolling is warranted.18 The one-year federal limitations period
is subject to equitable tolling only “in rare ands exceptional circumstances.”19 The doctrine of
equitable tolling “applies principally where the plaintiff is actively misled by the defendant about
the cause of action or is prevented in some extraordinary way from asserting his rights.”20
Generally, a litigant seeking equitable tolling bears the burden of establishing the following
two elements: (1) he has been pursuing his rights diligently, and (2) some extraordinary
circumstance has stood in his way.21 “A petitioner’s failure to satisfy the statute of limitations must
result from external factors beyond his control; delays of the petitioner’s own making do not
qualify.”22 Ignorance of the law, lack of knowledge of filing deadlines, or a temporary denial of
access to research materials or an adequate law library are generally not sufficient to warrant
equitable tolling.23 Further, equitable tolling “is not intended for those who sleep on their rights.”24

17

See Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003).
Hardy v. Quarterman, 577 F.3d 596, 598 (5th Cir. 2009).
19
See United States v. Patterson, 211 F.3d 927, 928 (5th Cir. 2000).
20
Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), abrogated on other grounds by Richards v. Thaler, 710
F.3d 573, 578-79 (5th Cir. 2013).
21
Pace, 544 U.S. at 418.
22
Id. quoting In re Wilson, 442 F.3d 872, 875 (5th Cir. 2006).
23
Tate v. Parker, 439 F. App’x. 375, 376 (5th Cir. 2011) citing Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir.
2000) and Scott v. Johnson, 227 F.3d 260, 263 & n. 3 (5th Cir. 2000).
24
Manning v. Epps, 688 F.3d 177, 184 (5th Cir. 2012).
18

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Thus, a federal habeas petitioner is required to act with diligence25 and alacrity both during the
period allowed for the filing of state post-conviction review proceedings and after the denial
thereof by the state appellate courts.26
Here, Petitioner has not made any arguments regarding equitable tolling. Even if Petitioner
sought to be relieved of the untimeliness of his habeas petition through equitable tolling, it appears
Petitioner was merely unknowledgeable about the applicable statute of limitations. As mentioned,
ignorance of the law and lack of knowledge of filing deadlines is not an excuse and not considered
an extraordinary circumstance.
Accordingly, equitable tolling is not warranted in this matter, and Petitioner’s untimely
application for habeas corpus relief should be dismissed.
III.

Certificate of Appealability
Should Petitioner pursue an appeal, a certificate of appealability will also be denied. An

appeal may not be taken to the court of appeals from a final order in a habeas corpus proceeding
“unless a circuit justice or judge issues a certificate of appealability.”27 Although Petitioner has
not yet filed a Notice of Appeal herein, the Court may address whether he would be entitled to a
certificate of appealability.28 A certificate of appealability may issue only if a habeas petitioner
has made a substantial showing of the denial of a constitutional right.29 In cases where the Court
has rejected a petitioner’s constitutional claims on procedural grounds, a petitioner must
demonstrate that “jurists of reason would find it debatable whether the petition states a valid claim

“The diligence required for equitable tolling purposes is reasonable diligence, . . . not maximum feasible diligence,”
and equitable tolling decisions must be made on a case by case basis. Holland v. Florida, 560 U.S. 631, 649-50, 653
(2010) (internal quotation marks omitted).
26
See Ramos v. Director, at *4 (E.D. Tex. Mar. 1, 2010), 2010 WL 774986.
27
28 U.S.C. § 2253(c)(1)(A).
28
See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
29
28 U.S.C. § 2253(c)(2).
25

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of a denial of constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.”30 In the instant case, reasonable jurists would
not debate the denial of Petitioner’s application or the correctness of the procedural ruling.
Accordingly, if Petitioner seeks to pursue an appeal in this case, a certificate of appealability will
be denied.
IV.

Conclusion
For the reasons set forth herein, Petitioner’s application for habeas corpus relief is

DENIED as untimely and that this proceeding is DISMISSED WITH PREJUDICE.
If Petitioner seeks to pursue an appeal in this case, a certificate of appealability will be
denied.
Signed in Baton Rouge, Louisiana, on September 22, 2020.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

30

Ruiz v. Quarterman, 460 F.3d 638, 642 (5th Cir. 2006).

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