Smith v. Louisiana State Penitentiary

Filing 5

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Terry Smith Objections to R&R due by 10/26/2009. IT IS RECOMMENDED that this petition for federal habeas corpus relief should be DENIED and DISMISSED WITH PREJUDICE. Signed by Magistrate Judge C Michael Hill on 10/6/09. (crt,Jordan, P)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA T E R R Y SMITH L A . DOC #312695 V S. C I V I L ACTION NO. 6:09-0981 S E C T IO N P J U D G E HAIK B U R L CAIN, WARDEN M A G I S T R A T E JUDGE HILL

R E P O R T AND RECOMMENDATION P r o se petitioner Terry Smith filed the instant petition for writ of habeas corpus p u rs u a n t to 28 U.S.C. § 2254 on June 16, 2009. Petitioner is an inmate in the custody of L o u is ia n a 's Department of Public Safety and Corrections. He is incarcerated at the L o u is ia n a State Penitentiary. Petitioner attacks his July 1, 2004 first degree murder c o n v ic tio n entered in the Sixteenth Judicial District Court for St. Martin Parish, L o u is ia n a . T h is matter has been referred to the undersigned for review, report, and re c o m m e n d a tio n in accordance with the provisions of 28 U.S.C. § 636 and the standing o rd e rs of the Court. For the following reasons it is recommended that the petition be D IS M I S S E D WITH PREJUDICE as time-barred by the provisions of 28 U.S.C. § 2244(d). STATEMENT OF THE CASE T h e St. Martin Parish Grand Jury indicted petitioner on a charge of first degree m u rd e r, a capital offense under Louisiana law. On July 1, 2004, petitioner pled guilty to

f irs t degree murder pursuant to a plea agreement and, in accordance with the plea a g re e m e n t, he was sentenced to life imprisonment without parole. Petitioner did not directly appeal his conviction or sentence. However, petitioner d id seek various forms of post-conviction relief. A lth o u g h not disclosed by petitioner, the published jurisprudence reveals that p e titio n e r first sought post-conviction relief in the Sixteenth Judicial District Court. His c la im s were ultimately denied on May 4, 2007 by the Louisiana Supreme Court, which denied writs and dismissed the application as untimely filed pursuant to article 930.8 of th e Louisiana Code of Criminal Procedure. See State of Louisiana ex rel. Terry Glenn S m ith v. State of Louisiana, 956 So.2d 603, 2006-KH-2107 (La. 2007). P e titio n e r also filed a "post conviction state writ of habeas corpus" in the T w e n tie th Judicial District Court.1 In this pleading, petitioner attacked his conviction on th e grounds that the Sixteenth Judicial District Court exceeded its jurisdiction in a c ce p tin g his plea, since he was mentally retarded. On July 5, 2007, Judge Carmichael of th e Twentieth Judicial District Court denied state habeas corpus relief "declaring [that] p e titio n e r should have sought relief in the 16th J.D.C. via application for post-conviction re lief . . . ." [rec. doc. 1, ¶11; see also p. 18]. O n August 9, 2007, petitioner filed a second application for post-conviction relief in the Sixteenth Judicial District Court raising the same claim. The trial court denied the

The Louisiana State Penitentiary at Angola is located in W e s t Feliciana Parish, which is included within t h e jurisdiction of the Twentieth Judicial District. See La. R.S.13:477(20).

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a p p lic a tio n . Thereafter, on January 3, 2008, petitioner's request for review in the L o u is ia n a Third Circuit Court of Appeals was denied. See State of Louisiana v. Terry G. S m ith , No. KH 07-1300 (La. App. 3 r d Cir. 2008) (unpublished). The Louisiana Supreme C o u rt denied petitioner's request for writs on March 27, 2009, finding the petition had b e e n untimely filed, citing Louisiana Code of Civil Procedure article 930.8 (which p ro v id e s a 2-year period of limitations for seeking post-conviction relief) and State ex rel. G lo v e r v. State, 660 So.2d 1189, 93-2330 (La.1995) (which held that the Louisiana a p p e llate courts are not precluded from denying relief on basis of the time bar for postc o n v ic tio n applications when the lower courts addressed the merits of the untimely filed ap p lica tio n ), abrogated on other grounds, State ex rel Oliviere v. State, 779 So.2d 735 (L a . 2001). State of Louisiana ex rel. Terry G. Smith v. State of Louisiana, 5 So.3d 138, 2 0 0 8 -K H -14 4 8 (La. 2009). P e titio n e r signed his federal habeas corpus petition on June 12, 2009; it was re c eiv e d and filed by the Clerk of this Court on June 16, 2009. In his standardized p e titio n , petitioner sets forth a single claim of relief : "State trial court exceeded ju ris d ic tio n . . . ." [rec. doc. 1, "Ground One" p. 5]. In his memorandum in support of f e d e ra l habeas relief, petitioner articulated the claim as follows: "The state courts erred w h e n they failed to recognize petitioner's claim as `jurisdictional defect' and failed to g ra n t relief, misapplying the law as to La. C.Cr.P. article 930.8(A); petitioner's guilty plea a c c e p te d while stipulating to be mentally retarded . . . ." [rec. doc. 1, p. 21].

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P e itio n e r argues that once his mental capacity was placed at issue, under Louisiana la w (L.C.Cr.P. art. 642), the trial court did not have jurisdiction to accept his guilty plea, a n d , further, that his plea, which was entered in accordance with Atkins v. Virginia, 536 U .S . 304, 129 S.Ct. 2145 (2002) (holding that the Eighth Amendment bars execution of m e n ta lly retarded offenders), State v. Dunn, 974 So.2d 658 (La. 2008) and State v. W illia m s, 831 So.2d 835 (La. 2002), was invalid. L A W AND ANALYSIS T h is petition was filed after the effective date of the Anti-Terrorism and Effective D e a th Penalty Act of 1996 (AEDPA), therefore, the court must apply the provisions of A E D P A , including the timeliness provisions codified at 28 U.S.C. § 2244(d). Villegas v. J o h n s o n , 184 F.3d 467, 468 (5th Cir. 8/9/1999); Lindh v. Murphy, 521 U.S. 320, 336, 117 S .C t. 2059, 138 L.Ed.2d 481 (1997). Title 28 U.S.C. § 2244(d)(1) was amended by AEDPA to provide a one-year period of limitations for the filing of applications for writ o f habeas corpus by persons in custody pursuant to the judgment of a state court. This lim ita tio n period generally runs from the date that the conviction becomes final. 28 U .S .C . § 2244(d)(1)(A).2 T h e statutory tolling provision set forth in 28 U.S.C. § 2244(d)(2) provides that th e time during which a properly filed application for post-conviction relief is pending in
Nothing in the pleadings or record suggest that State created impediments prevented the timely filing of t h i s petition; nor do the pleadings or record suggest that petitioner is relying on a constitutional right newly r e c o g n i z e d by the United States Supreme Court and made retroactively applicable to cases on collateral review. See 2 8 U.S.C. § 2244(d)(1)(B) and (C). Petitioner's suggestion that he recently discovered the facts underlying his claim a n d therefore, should be able to rely on § 2244(d)(1)(D) is discussed below.
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s ta te court is not counted toward the limitation period. Ott v. Johnson, 192 F.3d 510, 512 (5 th Cir. 1999); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998); 28 U.S.C. § 2244(d)(2). However, any lapse of time before the proper filing of an application for p o s t-c o n v ic tio n relief in state court is counted against the one-year limitation period. V ille g a s , 184 F.3d 467 citing Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir.1998). Federal courts may raise the one-year time limitation sua sponte. Kiser v. Johnson, 163 F .3 d 326 (5th Cir. 1999). P e titio n e r was sentenced on July 1, 2004; he did not appeal. For AEDPA p u rp o s e s, petitioner's judgment of conviction and sentence "became final by the c o n c lu sio n of direct review or the expiration of the time for seeking such review", thirty d a ys following the imposition of petitioner's sentence3 or, on or about August 2, 2004.4 U n d e r 28 U.S.C. § 2244(d)(1)(A) petitioner had one year, or until August 2, 2005 to file h is federal habeas corpus petition. Petitioner contends that the Louisiana Courts erroneously dismissed his a p p lica tio n s for post-conviction relief as untimely filed because those courts failed to a p p ly article 930.8(A)(1), which provides an exception to the one year limitation period if

See La. C.Cr.P. article 914(b)(1) which, at the time of petitioner's conviction, provided, "The motion for a n appeal must be made no later than [t]hirty days after the rendition of the judgment or ruling from which the appeal i s taken." La. C.Cr.P. article 13 provides: "In computing a period of time allowed or prescribed by law . . . the date of the act, event, or default after which the period begins to run is not to included. The last day of the period is to be included, unless it is a legal holiday, in which event the period runs until the end of the next day which is not a legal holiday. . . ." Petitioner was sentenced on Thursday, July 1, 2004. The thirty day period for seeking an appeal ended on Saturday, July 31. Therefore, petitioner had until Monday, August 2, 2004 to file a timely motion for appeal.
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th e applicant can establish that the "facts upon which the claim is predicated were not k n o w n to the petitioner or his attorney . . . ." In support of this argument, petitioner c laim s that he and his attorney were "ignorant to the facts that the prosecution could p ro c e ed no further, when the issue of petitioner's competency and capacity to proceed w a s raised, and Petitioner just recently discovered these facts from research at the prison la w library . . . ." [rec. doc. 1, pg. 25]. Clearly, petitioner confuses "facts" with "law"; ignorance of the law does not q u a lify for the exception set forth in article 930.8(A)(1). Furthermore, it is clear that both p e titio n e r and his attorney were aware of the facts underlying any claim of incompetence, as well as any potential issue as to petitioner's retardation, prior to entry of petitioner's p lea . Indeed, petitioner himself has submitted a copy of a letter written by his attorney to th e Practice Assistance Counsel wherein petitioner's attorney explains why he advised p e titio n e r to accept the state's life sentence plea offer in lieu of standing trial at which the sta te would seek the death penalty as follows: "[d]octors found Mr. Smith competent to s ta n d trial and the trial court accepted these findings. With respect to the mental re ta rd a tio n issue, one doctor found Mr. Smith to be mentally retarded and, as such, not e lig ib le to receive the death penalty. A second doctor however, concluded otherwise. A th ird doctor was unable to reach a definitive conclusion. With this [sic] conflicting m e d ic a l reports, the state offered a life sentence."

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L ik e w ise , to the extent that petitioner implies that the federal habeas corpus one ye a r limitations period should run from "the date on which the factual predicate of the claim . . . could have been discovered through the exercise of due diligence . . .", under § 2244(d)(1)(D), for these same reasons that claim is without merit. Section 2 2 4 4 (d )(1 )(D ) also requires the recent discovery of facts, and not some late realization of th e law. Thus, § 2244(d)(1)(D) is inapplicable. In light of the above, the federal one year limitation period is properly calculated u n d e r § 2244(d)(1)(A). The one year limitation period for petitioner to file his federal h a b e a s corpus petition expired on August 2, 2005. Petitioner cannot rely on statutory tolling under 28 U.S.C. § 2244(d)(2) because he d id not timely or properly file his applications for post-conviction relief in the Louisiana c o u rts . Petitioner's first post-conviction application was denied by the Louisiana S u p r e m e Court as untimely filed. His state habeas corpus petition, filed in the Twentieth J u d ic ia l District Court, was dismissed as improperly filed because petitioner could not s e e k relief pursuant to Louisiana's habeas corpus statutes (La. C.Cr.P. arts. 351 et seq. ) b e c au s e those provisions are not available to persons entitled to file an application for p o s t-c o n v ic tio n relief. See La.C.Cr.P. art. 351; Sinclair v. Kennedy, 701 So.2d 457, 460, 1 9 9 6 -1 5 1 0 (La.App. 1 Cir. 1997), writ denied, 717 So.2d 645, 1997-2495 (La. 1998)5 ;
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The Sinclair court summarized state habeas corpus law as follows: G e n e r a l l y , habeas corpus deals with pre-conviction complaints concerning custody, and is not the p r o p e r procedural device for post-conviction relief. LSA-C.Cr.P. art. 351 and Official Revision C o m m e n t (c). It is not available to contest the validity of the conviction or to have the sentence set a s i d e ; such claims are considered requests for post-conviction relief. See State ex rel. Lay v. Cain,

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S ta te ex rel. James v. State, 640 So.2d 259, 259 (La. App. 1 Cir. 1993).6 Moreover, p e titio n e r's second, and most recent, post-conviction application was also denied, u ltim a te ly dismissed by the Louisiana Supreme Court pursuant to Louisiana Code of C rim in a l Procedure article 930.8. A federal habeas corpus petitioner is not entitled to statutory tolling under § 2244(d)(2) if, by the time he filed his State application, it was time-barred under State la w . This is so because an untimely application for post-conviction relief cannot be c o n s id e re d "properly filed" so as to toll the running of the limitations period. See Pace v. D iG u g lie lm o , 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). P e titio n e r is also unable to rely upon the doctrine of equitable tolling. The S u p re m e Court has not decided whether the AEDPA limitations period may be equitably to lled . However, the Supreme Court, when assuming without deciding that equitable to llin g is available, articulated that in order to be entitled to equitable tolling, the p e titio n e r must show "that he has been pursuing his rights diligently" and "that some

96-1247 (La.App. 1st Cir. 2/14/97), 691 So.2d 135, 137; State ex rel. James v. State, 640 So.2d 2 5 9 (La.App. 1st Cir.1993). T h e James court summarized state habeas corpus law as follows: H a b e a s corpus is a writ commanding a person who has another in his custody to produce him b e fo r e the court and to state the authority for the custody. La.C.Cr.P. art. 351. Generally, habeas c o rp u s is not the proper procedural device for petitioners who may file applications for p o s t-c o n v ic tio n relief. La.C.Cr.P. art. 351. Essentially, habeas corpus deals with preconviction c o m p la in ts concerning custody. Official Revision Comment (c), La.C.Cr.P. art. 351. An a p p l ic a tio n for post-conviction relief is a petition filed by a person in custody after sentence fo l lo w i n g conviction for the commission of an offense seeking to have the conviction and sentence s e t aside. La.C.Cr.P. art. 924. See State ex rel. Bartie v. State, 501 So.2d 260 (La. App. 1st. Cir. 1986).
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e x tra o rd in a ry circumstance stood in his way and prevented timely filing." Lawrence v. F lo r id a , 127 S.Ct. at 1085; see also Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1 8 0 7 ,1 6 1 L.Ed.2d 669 (2005). In accord with the Lawrence standard, the Fifth Circuit has held that the AEDPA's o n e -ye a r statute of limitations can, in rare and exceptional circumstances, be equitably to lle d . See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998). Equitable tolling applies " w h e re the district court has done something to mislead the petitioner into believing that h is petition is due after the limitations period has expired." Johnson, 483 F.3d at 286 (c ita tio n s omitted). However, "[a] petitioner's failure to satisfy the statute of limitations m u s t result from external factors beyond his control; delays of the petitioner's own m a k in g do not qualify." In re Wilson, 442 F.3d 872, 875 (5th Cir.2006). Petitioner has failed to demonstrate any extraordinary circumstance which in any w a y prevented his timely filing in this court; petitioner was not mislead or prevented by th e court or the State of Louisiana from asserting his rights in a timely filed federal h a b e a s corpus petition. Further, neither "excusable neglect" nor ignorance of the law is s u f f ic ie n t to justify equitable tolling. Johnson, 483 F.3d at 286 citing Fierro v. Cockrell, 2 9 4 F.3d 674, 682 (5 th Cir. 2002); Felder, 204 F.3d at 171 citing Fisher, 174 F.3d at 714. M o re o v e r, while the Fifth Circuit has recognized the possibility that mental in c o m p e te n c y might support equitable tolling of a limitations period, petitioner has o f f e re d insufficient support for this court to find that his mental retardation rendered him

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m e n ta lly incompetent so as to justify equitable tolling of the limitation period herein. See F is h e r v. Johnson, 174 F.3d 710, 713 (5th Cir.1999), cert. denied, 531 U.S. 1164, 121 S .C t. 1124, 148 L.Ed.2d 991 (2001) citing Hood v. Sears, Roebuck & Co., 168 F.3d 231, 2 3 2 -3 3 (5th Cir.1999). To the contrary, the record refutes any such claim. As noted above, the doctors w h o examined petitioner found him competent to stand trial. Moreover, petitioner's a lle g e d mental retardation did not stop him from filing two state post-conviction a p p lic a tio n s or a state habeas corpus petition. The undersigned therefore can find no re a so n why petitioner's alleged mental condition would have precluded his timely filing o f a federal petition as well. Finally, under the circumstances presented, the undersigned cannot find that p e titio n e r diligently pursued federal habeas relief. Here, petitioner waited over two years to file for state post-conviction relief and over nine before filing for relief in this court. As the Fifth Circuit has noted, "equity is not intended for those who sleep on their rights." Coleman, 184 F.3d at 402 citing Fisher v. Johnson, 174 F.3d 710 (5th Cir.1999); In re W ils o n , 442 F.3d at 875. In accordance with the foregoing analysis, the undersigned finds that petitioner's c la im s are barred by the one-year limitation period codified at 28 U.S.C. § 2244(d). ACCORDINGLY, I T IS RECOMMENDED that this petition for federal habeas corpus relief should b e DENIED AND DISMISSED WITH PREJUDICE because petitioner's claims are 10

b arred by the one-year limitation period codified at 28 U.S.C. § 2244(d). Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Rule 72(b), parties ag g riev ed by this recommendation have ten (10) business days from service of this report a n d recommendation to file specific, written objections with the Clerk of Court. A party m a y respond to another party's objections within ten (10) days after being served with a c o p y of any objections or response to the District judge at the time of filing. F a ilu r e to file written objections to the proposed factual findings and/or the p r o p o s e d legal conclusions reflected in this Report and Recommendation within ten (1 0 ) days following the date of its service, or within the time frame authorized by F e d .R .C iv .P . 6(b), shall bar an aggrieved party from attacking either the factual fin d in g s or the legal conclusions accepted by the District Court, except upon g r o u n d s of plain error. See, Douglass v. United Services Automobile Association, 79 F .3 d 1415 (5th Cir. 1996). In Chambers, Lafayette, Louisiana October 6, 2009.

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