Edwards v. Forcht Wade Correctional Center

Filing 4

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Jack E Edwards: IT IS RECOMMENDED that Petitioner's application for writ of habeas corpus be DENIED AND DISMISSED WITH PREJUDICE, sua sponte, because it is time barred by the one-year limitation period imposed by the AEDPA. Objections to R&R due by 4/16/2009. Signed by Magistrate Judge Mark Hornsby on 3/30/09. (crt,Cassanova, M)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF LOUISIANA S H R EV E P O RT DIVISION J A C K E. EDWARDS VERSUS W A R D E N BATSON CIVIL ACTION NO. 09-95-P J U D GE STAGG MAGISTRATE HORNSBY R E P O RT AND RECOMMENDATION In accordance with the standing order of this Court, this matter was referred to the u n d e r s ig n e d Magistrate Judge for review, report and recommendation. S T A T E M E N T OF CLAIM Bef o re the Court is a petition for writ of habeas corpus filed by pro se petitioner Jack E . Edwards ("Petitioner"), pursuant to 28 U.S.C. §2254. This petition was received and f i l ed in this Court on January 15, 2009. Petitioner is incarcerated in the Forcht Wade C o r r e c t io n a l Center in Keithville, Louisiana. He challenges his state court conviction and senten ce. He names Warden Batson as respondent. O n June 17, 2004, Petitioner was convicted of DWI - Fourth Offense in Louisiana's F i r s t Judicial District Court, Parish of Caddo. On June 24, 2004, he was sentenced to 10 years imprisonment at hard labor. The trial judge ordered the first three years to be served w i t h o u t benefit of parole, probation or suspension of sentence. The trial judge ordered the sen tenc e to run consecutively to any other sentence.

In support of this petition, Petitioner alleges (1) the evidence was insufficient to support his conviction and (2) the police ignored his request to speak with his attorney dur ing his initial interview. For the reasons that follow, Petitioner is not entitled to the relief requested and his p e t i ti o n should be dismissed because it is barred by the one-year limitation period of the A n t i t e rr o r is m and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. Section 2244. LAW AND ANALYSIS O n April 24, 1996, the AEDPA amended 28 U.S.C. Section 2244 to provide for a " 1 - ye a r period of limitation [that] shall apply to an application for writ of habeas corpus by a person in custody pursuant to the judgment of a State court." The limitation period runs f ro m the latest of four possible dates, as follows1 : 1 . the date "the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review"; 2 . the date "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 action"; 3 . the date that "the constitutional right asserted was initially recognized by the Supreme Court," if it is newly recognized and made retroactively applicable; or The time during which a properly filed state post-conviction relief application or other collateral review is pending shall not be counted toward the period of limitations. See 28 U.S.C. § 2244(d)(2).
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4 . the date "the factual predicate of the claim . . . presented could have been discovered through . . . due diligence." 28 U.S.C. § 2244 (d)(1). Therefore, in order for a petition to be considered timely, it must be filed within one y e a r from the most recent date provided by subsections (1) through (4). In the case where a petitioner makes claims that do not implicate subsections (2) through (4), the Court must d e t e r m in e when the petitioner's conviction became final on direct review and then toll the l i m it a t io n s period for the time taken for any "properly filed" collateral review applications. P e t i ti o n e r was convicted on June 17, 2004 and sentenced on June 24, 2004. P e t i ti o n e r did not seek direct review of his conviction and sentence. Thus, Petitioner's con victi ons and sentences became final on July 24, 2004. See La. C.Cr.P. art. 914. The federal petition currently before the court was received and filed in this court o n January 15, 2009 and signed by Petitioner on January 13, 2009. Since the federal clock b e g a n ticking on July 24, 2004 and Petitioner had one full year in which to file his federal p e t i ti o n , Petitioner would have had to file this petition on or before July 24, 2005. This petit ion was not filed until January 2009 at the earliest, more than three years too late. In addition, the post-conviction proceedings conducted by Petitioner do not serve to toll the one-year limitation period as they were not filed within the one-year period. See supra footnote 1. Petitioner filed an application for post-conviction relief in the Louisiana F i r s t Judicial District Court on December 8, 2005. This application was signed by P e t i ti o n e r on November 15, 2005. These proceedings continued until the Supreme Court Page 3 of 5

o f Louisiana denied writs on January 25, 2008. State v. Edwards, NO: 2007-KP-741. To toll the federal limitation period, a petitioner's post-conviction application must be filed w i t h i n the federal one-year period. Petitioner did not sign his state post-conviction a p p l i ca t i o n until November 2005, which was after the limitation period had already expired in July 2005. Accordingly; I T IS RECOMMENDED that Petitioner's application for writ of habeas corpus be D E N I E D AND DISMISSED WITH PREJUDICE, sua sponte, because it is time barred b y the one-year limitation period imposed by the AEDPA. See Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1/6/99). O B J E C T IO N S U n d e r the provisions of 28 U.S.C. Section 636(b)(1)(C) and Fed. R. Civ. P. 72(b), p a r t ie s aggrieved by this recommendation have ten (10) business days from service of this Repo rt and Recommendation to file specific, written objections with the Clerk of Court u n l e s s an extension of time is granted under Fed. R. Civ. P. 6(b). A party may respond to a n o t h e r party's objections within ten (10) days after being served with a copy thereof. C o u n s e l are directed to furnish a courtesy copy of any objections or responses to the D i s t r ic t Judge at the time 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 ten (10) days after being served with a copy shall Page 4 of 5

ba r that party, except upon grounds of plain error, from attacking on appeal the proposed f a c t u a l findings and legal conclusions that were accepted by the district court and that were n o t objected to by the aforementioned party. See Douglas v. U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc). T H U S DONE AND SIGNED, in chambers, in Shreveport, Louisiana, this 30th day o f March 2009.

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