Opinion
CIVIL ACTION No. 00-1386 SECTION "K"(4).
December 28, 2000.
ORDER AND REASONS
The Court, after considering the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge and plaintiffs Objections received on October 4, 2000, and having conducted a de novo review of those portions of the Report and Recommendations to which objections are made as required by 28 U.S.C. § 636 (b)(1), hereby approves the Report and Recommendation of the United States Magistrate Judge and adopts it as its opinion in this matter.
Louis Hudson was convicted by a jury on June 17, 1993 with one count of aggravated rape of a person under age twelve, in violation of La. R.S. 14:42(A)(4). On April 27, 2000 he file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 which was referred to the Magistrate Judge for a Report and Recommendation. The Magistrate Judge's report recommended that Hudson's claim is time barred by the statute of limitations provided for preexisting and otherwise time-barred claims under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). The Report and Recommendation stated that Hudson's conviction became final on December 16, 1994 and that under the applicable statute of limitations, including tolling for time that his properly filed state application for post conviction review was pending, he had until September 12, 1997 to file his petition. Hudson did not file his federal habeas petition until April 27, 2000, more than two years and six months late. Petitioner has objected to the Magistrate Judge's Report and Recommendation on the grounds that his inability to obtain a complete trial transcript equitably tolls the statute of limitations until such a time as he receives a transcript.
Hudson's conviction became final on December 16, 1994, prior to the establishment of the AEDPA. However, his habeas petition was filed on April 27, 2000, after the implementation of the AEDPA. Therefore, unless the limitations period was tolled, his habeas petition must have been filed no later than April 24, 1997. Flanagan v. Johnson, 154 F.3d 196 (5th Cir. 1998).
The doctrine of equitable tolling preserves a plaintiffs claim when strict application of the statute of limitations would be inequitable.Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998), cert. denied 526 U.S. 1074 (1999). Equitable tolling can apply when a plaintiff "is prevented in some extraordinary way from asserting his rights." United States v. Patterson, 211 F.3d 927 (5th Cir. 2000). However, it must be noted that "equitable tolling . . . is permissible only under `rare and exceptional circumstances." Davis v. Johnson, 158 F.3d at 811. Thus, the Court "must examine each case on its facts to determine whether it presents sufficiently rare and exceptional circumstances to justify, equitable tolling." Brown v. Cain, 112 F. Supp. 585, 587 (E.D. La. 2000)(citing Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
The core of petitioner's argument is that the statute of limitations should be equitably tolled to account for the period of time he has waited for the State to produce his trial transcripts. However, plaintiff has failed to demonstrate that the denial of his trial transcripts is a "rare and exceptional circumstance" to justify equitable tolling. It is well settled that absent a particularized need, the mere assertion of an inability to obtain trial transcripts for use in federal collateral proceedings is not sufficient to toll the statute of limitations. See Brown v. Cain, 112 F. Supp. 585, 587 (E.D. La. 2000); See also Fadayiro v. United States, 30 F. Supp.2d 772, 780 (D. N.J. 1998) (the non-extraordinary nature of the delay in obtaining transcripts is evidenced by the fact that a federal prisoner seeking to collaterally attack conviction is not automatically entitled to free transcripts);United States v. Van Poyck, 980 F. Supp. 1108, 1111 (C.D. Cal. 1997) (failure to obtain a complete trial transcript is not an extraordinary circumstance when petitioner does not explain why the transcript is necessary to prepare habeas petition).
In his federal habeas petition, Hudson claimed that (1) he was denied equal protection when African-Americans were excluded from selection of the grand jury foreperson, (2) his indictment failed to list a crucial element of the offense, (3) he should have been given a complete trial transcript during his appeal, and (4) he was denied effective assistance of counsel when counsel failed to challenge racial discrimination in the selection of the grand jury foreperson. In his objections to the Report and Recommendation, petitioner fails to demonstrate how the State's failure to provide complete trial transcripts impeded his ability to file his federal habeas application. Moreover, except for the incorrect allegation that he was not provided trial transcripts during his State appeal, all of petitioner's grounds for habeas relief concern grand jury and sixth amendment issues that do not depend upon production of a trial transcript and could have been argued in the absence of such transcripts. Petitioner's attempt to raise for the first time in his objections to the Report and Recommendation the issues of failure of the trial judge to permit recross examination of State witnesses and insufficient evidence do not demonstrate the rare and exceptional circumstance to justify equitable tolling.
Petitioner's counsel was provided a complete copy of the record for his State appeal. See State of Louisiana v. Louis Hudson, No. 92-1253 (24th JDC July 18, 1995.)
Therefore, because the petitioner has not shown "any interference with Petitioner's rights that would prevent the timely procession of the full panoply of State and federal collateral proceedings" the Court will not apply equitably toll the statute of limitations. Brown v. Cain, 112 F. Supp.2d 585, 587 (E.D. La. 2000). As such, petitioner's habeas claims are time barred and need not be addressed by the Court. Accordingly,
IT IS ORDERED that there will be judgment herein in favor of defendant, Burl Cain, Warden, and against petitioner, Louis Hudson, DISMISSING WITH PREJUDICE his petition.