Saucier v. State of Mississippi et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 9 Motion to Dismiss filed by State of Mississippi, Eydie Winkel, 12 Report and Recommendations. Signed by Chief District Judge Louis Guirola, Jr on 3/4/15 (PKS)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CAUSE NO. 1:14CV138-LG-JCG
ORDER ADOPTING REPORT AND RECOMMENDATION
BEFORE THE COURT is the Report and Recommendation  entered by
United States Magistrate Judge John C. Gargiulo in which he recommends that
Eddie Saucier’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
should be dismissed as untimely. Saucier filed an Objection to the Report and
Recommendation, and the respondent Eydie Winkel filed a Response in opposition
to the Objection. After reviewing the submissions of the parties, the record in this
matter, and the applicable law, the Court finds that the Report and
Recommendation should be adopted as the opinion of this Court, and the Motion to
Dismiss  filed by Winkel should be granted.
On March 17, 2005, Saucier was convicted of murder and sentenced to life in
prison without the possibility of parole. (Judgment, ECF No. 9-1). The Mississippi
Court of Appeals affirmed Saucier’s conviction and sentence on February 27, 2007.
Saucier v. Mississippi, 950 So. 2d 262 (Miss. Ct. App. 2007). Saucier filed a Motion
for Post-Conviction Relief on March 29, 2012, which was denied by the Mississippi
Supreme Court on May 17, 2012. (Mot., ECF No. 9-3; Order, ECF No. 9-4).
Saucier’s Motion for Reconsideration of the denial of his Motion for Post-Conviction
Relief was denied on July 5, 2012. (Order, ECF No. 9-5).
Saucier signed the present Petition for Writ of Habeas Corpus on March 13,
2014. (Petition, ECF No. 1). Saucier claims that his trial counsel provided
ineffective assistance, because counsel failed to attack the credibility of one of the
State’s primary witnesses, Gregory Clayton. Saucier identifies two witnesses –
Johnny Woodland and Billy R. Ford, Jr. – who would allegedly testify that Clayton
had a drug addiction and that he attempted to rob them. Saucier also claims that
Clayton had served as Saucier’s “pro se attorney” or “writ writer,” because Clayton
helped Saucier read his trial transcript. Saucier thus claims that Clayton’s
testimony at trial violated attorney-client privilege. Winkel has filed a Motion to
Dismiss Saucier’s Petition as untimely.
Magistrate Judge Gargiulo entered a Report and Recommendation proposing
that the Motion to Dismiss should be granted. Saucier filed an Objection, asserting
for the first time that there is a new witness who would testify that Clayton
received a shorter sentence in exchange for testifying against Saucier. Saucier also
presents new arguments that he is entitled to equitable tolling, because he cannot
read well and he has been taking very strong psychiatric medication “du[r]ing the
time he spent in jail an[d] in late years to effect he did not know what re[a]lly was
going on.” (Objection at 1-2, ECF No. 14). Winkel filed a Response contesting the
new arguments contained in Saucier’s Objection.
The Antiterrorism and Effective Death Penalty Act (AEDPA) provides:
(d)(1) A 1-year period of limitation 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 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 action;
(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
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of
(2) The time during which a properly filed application for State postconviction 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.
28 U.S.C. § 2244(d). Judge Gargiulo correctly determined that Saucier’s state court
murder conviction became final under subsection (d)(1)(A) on March 13, 2007, due
to Saucier’s failure to request a rehearing from the Mississippi Court of Appeals.
See Roberts v. Cockrell, 319 F.3d 690, 693-95 (5th Cir. 2003); see also Miss. R. App.
P. 17(b), 40(a). In addition, Saucier’s motion for post-conviction relief did not toll
the one-year limitations period, because Saucier’s motion was filed after the
deadline for filing a habeas petition had lapsed. See Brown v. Thaler, 455 F. App’x
401, 405 (5th Cir. 2011) (citing Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000)).
As a result, the statute of limitations expired on March 13, 2008. Saucier’s Habeas
Corpus Petition was filed six years later.
Saucier argues without further explanation that he is entitled to statutory
tolling pursuant to Section 2244(d)(1)(D). Saucier presumably contends that the
one-year limitations period began to run on the date on which he located the two
witnesses he names in his Petition. Judge Gargiulo determined that the same
factual predicate of Saucier’s Petition was raised on direct appeal “and therefore
was apparent when his state court conviction became ‘final’ [pursuant to subsection
(d)(1)(A)] on March 13, 2007.” (Report and Recommendation 4, ECF No. 12).
Specifically, the Mississippi Court of Appeals explained that Saucier “attack[ed]
Clayton’s credibility stating that Clayton is ‘a criminal and a liar,’ and assert[ed]
that when Clayton was arrested on the robbery charge, for which he is now serving
time, he gave the police an alias.” Saucier, 950 So. 2d at 266. Saucier also argued
that “Clayton left out significant details about how the crime was committed and
that any knowledge Clayton had about Wilson’s murder came from reading the trial
transcript . . . .” Id.
The Fifth Circuit has explained that “Section 2244(d)(1)(D) does not convey a
statutory right to an extended delay . . . while a habeas petitioner gathers every
possible scrap of evidence that might, by negative implication, support his claim.”
Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998). Saucier raised the issue of
Clayton’s credibility on direct appeal. Therefore, Judge Gargiulo correctly found
that Saucier could not demonstrate that he acted with due diligence or that Saucier
needed additional time to uncover the factual predicate of his claim. At best,
Saucier’s proposed witnesses would merely provide additional evidence that would
support Saucier’s previous attack on Clayton’s credibility. Furthermore, even if
Saucier had not presented the factual predicate of his claim on direct appeal,
Saucier has not stated the date on which he learned the identity of these witnesses,
and he has not provided any explanation for his failure to present these arguments
and witnesses to the court in a timely manner. Finally, Saucier’s contention in his
Objection that a new witness would testify that Clayton was given a more lenient
sentence in exchange for his testimony is contradicted by the record. Saucier, 950
So. 2d at 265 (“[T]he record indicates, that in exchange for his testimony, Clayton
did not receive any promise of a reduction in the mandatory sentence he was
already serving on a robbery conviction.”). As a result, Judge Gargiulo correctly
held that Saucier is not entitled to statutory tolling pursuant to Section
In his Objection, Saucier also argues that he is entitled to equitable tolling,
because he has difficulty reading and he took strong psychiatric medications. The
statute of limitations included in the AEDPA may be equitably tolled, but only in
“rare and exceptional circumstances.” Felder v. Johnson, 204 F.3d 168, 170 (5th
Cir. 2000). “A petitioner is entitled to equitable tolling if he shows that (1) he
pursued his rights with diligence and (2) ‘some extraordinary circumstance stood in
his way and prevented timely filing.’” Hailey v. Stephens, 532 F. App’x 571, 572
(5th Cir. 2013) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). The
petitioner bears the burden of proving he is entitled to equitable tolling. Alexander
v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002).
The Fifth Circuit “has recognized the possibility that mental incompetency
might support equitable tolling of a limitation period.” Fisher v. Johnson, 174 F.3d
710, 715 (5th Cir. 1999). However, conclusory assertions of mental illness are
insufficient. Lawrence v. Florida, 549 U.S. 327, 337 (2007); Smith v. Kelly, 301 F.
App’x 375, 378 (5th Cir. 2008).
Saucier’s inability to read well is insufficient grounds for equitable tolling.
See Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999); United States v. Flores,
981 F.2d 231, 236 (5th Cir. 1993). Furthermore, Saucier has not met his burden of
providing evidence and facts that demonstrate that a psychiatric medication
prevented him from timely filing his habeas petition.1 Finally, Judge Gargiulo
correctly held that Saucier has not demonstrated that he acted diligently in
pursuing his rights. As a result, Saucier is not entitled to equitable tolling.
For the foregoing reasons, the Report and Recommendation entered by Judge
Gargiulo is adopted as the opinion of this Court, and the Motion to Dismiss filed by
Winkel is granted.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Report and
Saucier did not allege that psychiatric medications prevented him from
timely filing his petition until after Judge Gargiulo entered his Report and
Recommendation. This delay also weighs in favor of denial of equitable tolling. See
Smith, 301 F. App’x at 378.
Recommendation  entered by United States Magistrate Judge John C. Gargiulo
is ADOPTED as the opinion of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that the Motion to
Dismiss  filed by Eydie Winkel is GRANTED. The Petition for Writ Habeas
Corpus filed by Eddie Saucier is hereby DISMISSED WITH PREJUDICE.
SO ORDERED AND ADJUDGED this the 4th day of March, 2015.
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
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