Opinion
CIVIL ACTION NO. 02-1509, SECTION "K" (6)
January 9, 2003
ORDER AND REASONS
Before the Court are Antoinette Holmes' Written Objections to the Magistrate's Report and Recommendation. Having reviewed de novo the petition, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge and petitioner's objection thereto, the Court dismisses Holmes' petition with prejudice as time-barred and hereby approves the Report and Recommendation and adopts it as its opinion herein.
Antoinette Holmes ("Holmes") objects to the Magistrate Judge's finding that that the facts of her case do not warrant the equitable tolling of the one-year statute of limitation under 28 U.S.C. § 2244(d)(1). She maintains that she was prevented from asserting her right to habeas review because of the delay by the 24th Judicial District Court State of Louisiana to provide her with transcripts. The transcripts that she sought were the Boykin and Sentencing transcript of July 17, 1998. She has presented the Court with a letter indicating that her request for her Boykin transcript was granted by the state court on July 17, 1998 and was informed that she would not receive that transcript for eight months from the date of the letter, that being until March 17, 1999. She contends that she did not actually receive them until "June of 1999 or even later, causing the delay in petitioner's Post-Conviction Relief filing."
As noted by the Magistrate Judge, Holmes had until March 2, 1999 to seek habeas relief. She did not seek post-conviction relief with the state district court until June 9, 2000, for her first application and October 23, 2000 for her second application; thus nothing was filed as provided under 28 U.S.C. § 2244(d)(2) to suspend the running of the one-year time period prior to its having run. Indeed, even her motion to correct an illegal sentence was filed on September 23, 1999, 6 months after the one-year period had run.
She claims that the failure of the state court to provide transcripts of her Boykin and Sentencing transcripts is cause to toll the AEDPA statute of limitations under its equitable tolling provisions. However, the state court's delay in furnishing the petitioner with the transcript did not establish a basis for equitable tolling. See Gassier v. Bruton , 255 F.3d 492, 495 (8th Cir. 2001) (rejecting equitable tolling argument based on alleged delay in receipt of a transcript); Brown v. Cain, 112 F. Supp.2d 585, 587 (E.D. La. 2000) (holding transcript unnecessary to prepare habeas petition); Fadayiro v. United States , 30 F. Supp.2d 772, 779-80 (D.N.J. 1998) (holding delay in receiving transcripts not sufficiently extraordinary to justify application of equitable tolling); United States v. Van Poyck , 980 F. Supp. 1108. 1110-11 (C.D.Cal. 1997) (holding delay in receipt of transcript not an "extraordinary circumstance" sufficient to justify equitable tolling).
As noted, "[t]he doctrine [of equitable tolling] `applies principally where the plaintiff is actively misled by the defendant about the cause of the action or is prevented in some extraordinary way from asserting his rights.'" Brown v. Cain, 112 F. Supp.2d 585, (E.D. La. 2000), aff'd. 239 F.3d 365 (5th Cir. 2000), citing United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000). Indeed, as stated in Brown:
"Equitable tolling, however, is permissible only under `rare and exceptional' circumstances." Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000) . . . A district court "must be cautious not to apply the statute of limitations too harshly" because dismissal if a first habeas corpus is a serious matter. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). The Court, therefore, "must examine each case on its facts to determine whether it presents sufficiently `rare and exceptional circumstances' to justify equitable tolling." Fisher, 174 F.3d at 713.Id. (parentheticals omitted).
The Court has reviewed the petitioner's arguments raised in her habeas. None of the alleged "errors" were of the nature wherein the defendant was actively misled. She alleges that she received erroneous legal advice as to the possibility of a life sentence and that she should have had an evidentiary hearing on whether the crack cocaine that was the basis of the crimes charged was actually cocaine. She would not need the transcripts to raise this error.
She claims that she was not advised of her right to remain silent at the time of her plea of guilty. She would not need a transcript know whether or not she was advised of that right. She was in open court and was an active participant in the plea colloquy. See Brisbon v. Cain, 2000 WL 45872 (E.D. La. Jan. 18, 2000). Furthermore, a review of the record reveals that she was advised of those rights. This same rationale would hold true for her third claim, that she was "illegally adjudicated a habitual offender." She was present and active in her plea colloquy and was advised of her right to remain silent. As to the ineffective assistance of counsel allegations based on counsel's failure to investigate the laboratory results on all counts before entering a guilty plea, again Holmes would not require transcripts to raise this issue. Accordingly,
IT IS ORDERED that the petition of Antoinette Holmes for issuance of a writ of habeas corpus pursuant to Tile 28, United States Code, Section 2254, is hereby DENIED WITH PREJUDICE.