Self v. Washington Correctional Institute

Filing 45

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Billy Ray Self: IT IS RECOMMENDED that the petition for writ of habeas corpus be denied and that Petitioner's complaint be dismissed with prejudice. Objections to R&R due by 6/15/2009. Signed by Magistrate Judge Mark Hornsby on 5/28/09. (crt,Cassanova, M)

UNITED STATES DISTRICT COURT W E S T ER N DISTRICT OF LOUISIANA S H R E V EP O R T DIVISION

B I L L Y RAY SELF VERSUS W A R D E N , WASHINGTON C O R R E C T I O N A L INSTITUTE

C I V I L ACTION NO. 06-cv-1074 J U D G E WALTER M A G I S T R A T E JUDGE HORNSBY

R E P O RT AND RECOMMENDATION I n t r o d u c t io n A Caddo Parish jury found Billy Ray Self ("Petitioner") guilty of driving while i n t o x ic a t e d , third offense. The evidence showed that Petitioner's truck was seen leaving the s c e n e of a hit and run near Joe's Bar & Grill on East Kings Highway in Shreveport. A d e s c r ip t i o n of the truck was broadcast to all police units and, within a few minutes, an officer s a w Petitioner's truck weaving in traffic and cross the centerline. The truck ran over a curb wh ile Petitioner was making a turn. The officer stopped Petitioner and ordered him to get o u t of the truck. Petitioner refused to submit to a field sobriety test or a breath analysis. Two p o l i c e officers testified that Petitioner had the distinct odor of alcohol on his breath, slurred s p e e c h , bloodshot eyes, and was unsteady on his feet. Petitioner fell asleep in the back of the p o l i c e car on the way to jail. The jury also watched Petitioner on video tape as he fell asleep while standing, exhibited slurred speech, and otherwise demonstrated drunken behavior. P e t i ti o n e r pursued relief in the state courts by direct appeal and by a post-conviction a p p l i ca t i o n . He now seeks federal habeas relief on the grounds that he received ineffective

a s s i st a n c e of counsel, the state withheld evidence, and the predicate offenses were invalid. It is recommended, for the reasons that follow, that the petition be denied as untimely. P r o c e d u r a l History T h e trial judge sentenced Petitioner to serve four years at hard labor. Petitioner p u r s u e d a direct appeal. The state appellate court found that the evidence was sufficient to support the conviction, but it remanded the case for re-sentencing in light of new legislation. T r. 284. About a month after the appellate court remanded for re-sentencing, Petitioner filed in the state district court a pro se application for post-conviction relief. Tr. 341. The trial court held a new sentencing hearing and imposed a three-year sentence. T r. 394. The next day, the trial judge issued a written decision that denied the postc o n v i c ti o n application. Tr. 381-83. There is no indication that Petitioner sought supervisory w r i t s or otherwise pursued appellate relief with respect to this post-conviction application. Petitio n er's appointed counsel pursued a second direct appeal after the re-sentencing. S h e filed an Anders brief and a motion to withdraw. Counsel addressed some of the issues t h a t Petitioner had argued in his post-conviction application and explained why she found t h e m to lack merit. For example, Petitioner cited a case that held that municipal DWI c o n v i c ti o n s did not constitute prior convictions under the state statute, but the case had been legislativ ely overruled. Tr. 422. The state appellate court permitted Petitioner to file a pro se brief. Tr. 454. Petitioner submitted lengthy arguments. Tr. 441 and 457.

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T h e state appellate court rendered its judgment on April 7, 2004. The court addressed t h e sufficiency of the evidence, excessive sentence, and ineffective assistance of counsel c la im s that Petitioner raised in his pro se submissions. It found them to lack merit and a f f i r m e d the conviction and sentence. Tr. 479. Petitioner later filed an application for supervisory writs with the Supreme Court of Louisiana, and that court denied the writ w i t h o u t comment. It is the timing of that application to the state's high court that is the key to the timeliness analysis, set forth below. Running of One-Year Limitations Period A one-year period of limitations applies to petitions for habeas corpus. In an ordinary c a s e , such as this one, the limitation period runs from the date on which the state court j u d g m e n t of conviction "became final by the conclusion of direct review or the expiration o f the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The first step in assessing t i m e l i n e s s is, therefore, to determine when Petitioner's conviction became final and triggered the commencement of the one-year limitations period. In a typical case where a convicted person timely pursues his direct appeal through a writ application to the Supreme Court of Louisiana, the conviction becomes final for p u r p o s e s of Section 2244 ninety days after the state's high court enters its judgment, which is when the time to file a petition for writ of certiorari with the United States Supreme Court h a s expired. Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003). The rule is different if t h e defendant does not complete the appellate process and reach the state's highest court. "If

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t h e defendant stops the appeal process before that point, the conviction becomes final when t h e time for seeking further direct review in the state court expires." Roberts, 319 F.3d at 694 . The State asserts that Petitioner's conviction became final, and the limitations period c o m m e n c e d , when Petitioner did not timely file a writ application to the Supreme Court of L o u i s i a n a (direct review application) within 30 days after the state appellate court's decision i s s u e d . Louisiana Supreme Court Rule X, § 5(a) provides that an application for supervisory w r i t "shall be made within thirty days of the mailing of the notice of the original judgment o f the Court of Appeal [subject to exception when a timely application for rehearing is f i l ed ] . " The state appellate court rendered its judgment on April 7, 2004, and the Clerk of Cou rt issued a notice that the opinion was mailed to all parties on that same day. Tr. 478. Thirty days from April 7, 2004 was Friday, May 7, 2004. Thus, Petitioner's writ application wa s due on May 7, 2004. Petitioner mailed a pro se writ application from prison.1 Louisiana Supreme Court Ru le X, § 5(d) provides that an application "properly mailed shall be deemed timely filed if m a i l e d on or before the last day of the delay for filing." Furthermore, the Fifth Circuit has held that Louisiana's prison mailbox rule is applicable to the filing of an application for

There is no right to counsel for discretionary reviews in state court. Moore v. Co ckrell , 313 F.3d 880, 882 (5th Cir. 2002). Page 4 of 7

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d i r e c t review. Causey v. Cain, 450 F.3d 601 (5th Cir. 2006). Thus, Petitioner needed to d e l i v er his application for direct review to prison officials by Friday, May 7, 2004 for it to be timely. P e t i ti o n e r signed his writ application on August 26, 2004. Tr. 490, 500. It was p o s t m a r k e d at the prison on September 1, 2004. Tr. 501-A. Giving Petitioner the benefit of t h e doubt and treating his application as being filed on the date he signed it, the application wa s filed with the Supreme Court 111 days after the May 7 deadline. The Fifth Circuit faced a similar situation in Butler v. Cain, 533 F.3d 314 (5th Cir. 2 0 0 8 ) when the prisoner did not file his direct review application until 12 days after the dead lin e . The Supreme Court of Louisiana, both in Butler and in this case, later issued a one­w ord decision that the application was "Denied." See Tr. 501; Butler, 533 F.3d at 318. T h e Fifth Circuit held in Butler that the conviction became final on the deadline for timely s e e k i n g Supreme Court review. In this case, that deadline was May 7, 2004, so the one-year fed eral limitation commenced on that date. Petitioner's untimely direct review application was later filed on approximately A u g u s t 26, 2004 and remained pending until denied on June 17, 2005. Butler squarely held t h a t the time during which an untimely application is pending does not affect the running of t h e limitations period or result in statutory tolling. There is also no suggestion whatsoever t h a t Petitioner either applied for or received any extension of time from the Supreme Court o f Louisiana that would cure the untimeliness. The same was true in Butler, 533 F.3d at 319.

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T h e one-year limitations period began when the conviction was final on May 7, 2004 a n d ran without interruption until it expired on Monday, May 9, 2005 (May 7, the one-year anniversary date, was a Saturday). Petitioner signed his federal petition on June 12, 2006, s o that is the earliest date it could have been tendered to prison officials for mailing and, thus, deem ed filed. The limitations period had expired more than one year earlier. A s noted, the pendency of the untimely direct review application was of no effect. T here is no other basis in the record to find statutory tolling. The commonly invoked p r o v i s io n for tolling during the pendency of a properly filed application for post-conviction r ev ie w , 28 U.S.C. § 2244(d)(2), does not apply because Petitioner did not pursue his p o s t - c o n v i c t i o n application after the trial court denied it on June 18, 2003. Thus, the p o s t - co n v i c t io n proceeding (and any potential tolling effect) ended before the federal l i m it a t io n s period commenced in May 2004. The record does not reflect any other p o s t - co n v i c t io n proceedings that might toll the limitations period. Petitioner did file a m o t i o n to correct illegal sentence, but that motion was not filed until November 2006, long a f t e r the one-year limitation expired in May 2005. To the extent such a motion could toll the f e d e r a l limitations, the motion is of no effect because there was nothing left to toll by the time it was filed. See Butler, 533 F.3d at 318. P e t i ti o n e r filed a rebuttal memorandum after the state invoked the timeliness defense, b u t he did not address the timeliness issue. Petitioner simply repeated his merits arguments. T h e petition is untimely, as explained above, and should be dismissed for that reason.

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A cc or di ng ly; I T IS RECOMMENDED that the petition for writ of habeas corpus be denied and t h a t Petitioner's complaint be dismissed with prejudice. O b j e c t io n s U n d e r the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties a g g r i e v ed by this recommendation have ten (10) business days from service of this report and r ec o m me n d a ti o n to file specific, written objections with the Clerk of Court, unless an e x t e n s io n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party's objections within ten (10) days after being served with a copy thereof. Counsel are d i r e c te d to furnish a courtesy copy of any objections or responses to the District Judge at the t i m e of filing. A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n set forth above, within 10 days after being served with a copy, shall bar that pa rty, except upon grounds of plain error, from attacking on appeal the unobjected-to p r o p o s e d factual findings and legal conclusions accepted by the district court. See Douglass v . U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc). THUS DONE AND SIGNED in Shreveport, Louisiana, this 28th day of May, 2009.

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