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tolling period ended on October 27, 2000, the date of the writ denial
Summary of this case from Scott v. CainOpinion
Civil Action No. 01-1338 Section "H"
August 30, 2001
ORDER AND REASONS
Larry Walker's pro se petition for post-conviction relief pursuant to 28 U.S.C. § 2254 and § 2241 was considered on memoranda. Upon review of the entire record, including the state court record, it is clear that a federal evidentiary hearing is not necessary and that the petition should be dismissed.
Petitioner is a state prisoner who was convicted, following a trial by jury, of second degree murder(La. Rev. Stat. 14:30.1), and sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The state court of appeals affirmed petitioner's conviction. State v. Walker, 650 So.2d 363 (La.App. 5th Cir. 1995). The Louisiana Supreme Court denied writs. State v. Walker, 687 So.2d 388 (La. 1997); State ex rel Walker v. Cain, 387 So.2d 377 (La. 1997).
On January 9, 1998, petitioner filed an application for habeas corpus relief in the state district court; the state judge denied the petition. Walker v. Cain, No. 1983-F (23rd Judicial District Court May 12, 1998). Shortly thereafter petitioner filed a "Motion to Correct Illegal Sentence" in the state district court. The state judge denied the motion. Walker v. Cain, No. 1983-F (23rd Judicial District Court October 14, 1998). Petitioner filed another petition seeking state habeas relief; the state judge denied the petition. State v. Walker, No. 1983 (23rd Judicial District Court March 8, 1999). Petitioner then filed an application for writs with the state court of appeal; the state appellate court denied petitioner's application for writs. State ex rel Walker v. Louisiana, No. 99-KH-390 (La.App. 5th Cir. April 9, 1999). The Louisiana Supreme Court also denied petitioner's application for writs. State ex rel Walker v. Louisiana, 749 So.2d 628 (La. 1999).
While Walker's application for writs on his third petition for state habeas corpus relief was pending in the state court of appeal, Walker filed a fourth application for state habeas corpus relief. Following the district judge's denial of that petition, the state court of appeal denied Walker's application for writs. State ex rel Walker v. Louisiana, No. 99-KH-1420 (La.App. 5th Cir. January 10, 2000). The Louisiana Supreme Court again denied writs. State ex rel Walker v. Louisiana, 772 So.2d 119 (La. 2000).
In this court petitioner contends that his conviction should be vacated because the method used to select the grand jury foreperson and the grand jurors deprived him of his due process and equal protection rights and because the prosecutor unconstitutionally exercised the state's peremptory challenges in a racially discriminatory manner. Additionally, petitioner alleges that his trial counsel rendered ineffective assistance in the following respects: 1) failing to meet with him before trial to develop a trial strategy, 2) failing to investigate the crime scene, 3) failing to inform petitioner that the district attorney was willing to offer a plea bargain, and 4) failing to challenge the court's practice of appointing the grand jury foreperson. Because petitioner's application for habeas corpus relief is time-barred I need not address the state's contention that petitioner has failed to exhaust the available state remedies on several of his claims.
The state contends that petitioner's § 2254 claims are time barred. I agree; however the reasons supporting my conclusion differ from those urged by the state. The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1 996)(AEDPA) amended 28 U.S.C. § 2244 to establish a one-year limitation period for filing a federal habeas corpus petition. Title 28 U.S.C. § 2244(d) provides:
(1) A 1-year period of limitation shall apply to an application for a 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 movant 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 due diligence.
(2) The time during which a properly filed application for State post-conviction 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.
Under § 2244 petitioner had 365 days after his conviction became final to file his petition for federal habeas corpus relief, tolled only for the days on which a "properly filed" application for state habeas relief was pending. The latest day on which petitioner's conviction could be deemed final is April 28, 1997, the last day on which he could have applied for a writ of certiorai to the United States Supreme Court following the Louisiana Supreme Court's denial of his application for writs.
Petitioner filed his first of several applications for state habeas relief on January 9, 1998, 257 days after April 28, 1997, the latest date on which his conviction could be deemed final. His state habeas applications tolled the federal limitations statute only until October 27, 2000, the date the Louisiana Supreme Court denied his last application for writs related to a petition for state habeas relief An additional 177 days elapsed from October 27, 2000 until April 19, 2001, the earliest date on which petitioner's federal habeas petition could be considered filed. When that 177 day delay is added to petitioner's 257 day delay in filing his first application for state habeas corpus relief, it is clear that petitioner did not file his federal habeas petition within the 365 day period mandated by § 2244. Accordingly, this application for habeas corpus relief pursuant to 21 U.S.C. § 2254 is time barred.
Under the "mailbox" rule, pleadings filed by prisoners acting pro se are considered filed on the date that prison officials receive the pleading from the plaintiff for delivery to the court. Lara v. Johnson, 141 F.3d 239, 241, n. 2 (5th Cir. 1998), Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995); Thompson v. Raspberry, 993 F.2d 513, 515 (5th Cir. 1993). Although nothing in the record indicates the date petitioner tendered his application to prison officials, petitioner signed and dated the application on April 19, 2001. Thus, April 19, 2001 is the earliest date on which the federal application for habeas relief could have been filed.
Nor is petitioner entitled to habeas corpus relief pursuant to 28 U.S.C. § 2241. Petitioner's claims arise under § 2254, not § 2241. "Section 2241 is correctly used to attack the manner in which a sentence is executed. . . .A petition filed under § 2241 which attacks errors that occurred at trial or sentencing is properly construed as a § 2255 motion." Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001) (internal citation omitted). None of petitioner's claims challenge the manner in which his sentence is being executed. Petitioner's claims are properly construed as claims arising under § 2254, not § 2241, and for the reasons preciously stated I dismiss those claims as time barred.