Opinion
CIVIL ACTION NO. 02-1513, SECTION "L" (1).
January 8, 2003.
REPORT AND RECOMMENDATION
This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH PREJUDICE.
Pursuant to 28 U.S.C. § 2254(e)(2), whether to hold an evidentiary hearing is now a statutorily mandated determination. According to Section 2254(e)(2), the district court generally may hold an evidentiary hearing only when the petitioner has shown that either the claim relies on a new, retroactive rule of constitutional law that was previously unavailable ( 28 U.S.C. § 2254(e)(2)(A)(i)) or the claim relies on a factual basis that could not have been previously discovered through the exercise of due diligence ( 28 U.S.C. § 2254(e)(2)(A)(ii)); and the facts underlying the claim show by clear and convincing evidence that, but for the constitutional error, no reasonable jury would have convicted the petitioner ( 28 U.S.C. § 2254(e)(2)(B)).
Petitioner, Tonnie C. Luckett, is a state court prisoner incarcerated at the Louisiana State Penitentiary, Angola, Louisiana. On October 16, 1995, petitioner was convicted of three counts of aggravated rape, three counts of aggravated burglary, three counts of armed robbery, two counts of aggravated crime against nature, one count of forcible rape, one count of simple burglary, one count of simple robbery, and one count of aggravated battery in violation of La.Rev.Stat.Ann §§ 14:34, 42, 42.1, 60, 62, 64, 65, and 89.1 (West 1989). On June 7, 1991, petitioner was sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence on each conviction of aggravated rape; to thirty years imprisonment on each conviction of aggravated burglary; to ninety-nine years imprisonment without the benefit of parole, probation, or suspension of sentence on each conviction of armed robbery; to fifteen years imprisonment on each conviction of aggravated crime against nature; to forty years imprisonment on the forcible rape conviction; to twelve years imprisonment on the simple burglary conviction; to seven years imprisonment on the simple robbery conviction; and to ten years imprisonment on the aggravated battery conviction. The court ordered that all sentences run consecutively. On September 17, 1992, the Louisiana Fourth Circuit Court of Appeal affirmed petitioner's convictions. Because petitioner did not seek review of the intermediate appellate court's judgment in the Louisiana Supreme Court, his convictions and sentences became final on October 1, 1992, when he failed to file an application for rehearing with the Louisiana Fourth Circuit Court of Appeal within the fourteen days allowed. La.C.Cr.P. art. 922(B) (West 1992).
State Rec., Vol. I of VII, minute entry dated May 24, 1991; State Rec., Vol. II of VII, jury verdict forms.
State Rec., Vol. I of VII, minute entry dated June 7, 1991.
State v. Luckett, No. 91-KA-1728 (La.App. 4th Cir. Sept. 17, 1992) (unpublished); State Rec., Vol. III of VII.
La.C.Cr.P. art. 922(B) provides: "A judgment rendered by the supreme court or other appellate court becomes final when the delay for applying for a rehearing has expired and no application therefor has been made."
On January 9, 1995, petitioner filed with the state district court an application for post-conviction relief. That application was apparently denied on January 23, 1995. Petitioner then filed with the Louisiana Fourth Circuit Court of Appeal an application for supervisory writs. On September 8, 1995, the intermediate appellate court denied that application, holding: "This Court finds no error in the judgment of the trial court denying relator's application for post conviction relief."
State Rec., Vol. II of VII.
The state argues that the application was denied on January 17, 1995. Rec. Doc. 11, p. 8. However, the state district court minutes indicate that the matter was realloted on that date. State Rec., Vol. I of VII, minute entry dated January 17, 1995. However, on January 23, 1995, a minute entry states without elaboration "writ denied." State Rec., Vol. I of VII, minute entry dated January 23, 1995. This Court assumes that denial related to petitioner's post-conviction application.
On or about February 8, 1995, petitioner apparently filed a supplemental brief in support of that application. State Rec., Vol. II of VII. The state record does not reflect when the state district court issued a ruling regarding that supplemental filing. In its response, the state indicates that the supplement was denied on May 14, 1996. Rec. Doc. 11, p. 9. Although the state record is far from clear, it appears that the denial on May 14, 1996, related instead to a motion for production of documents petitioner filed on February 14, 1996. State Rec., Vol. I of VII. In a letter to the state district court judge dated May 17, 1996, petitioner expressed similar confusion over that ruling, indicating that he had only a "discovery" motion, not a post-conviction application, pending at that time. In that letter, petitioner stated:
I must say I am some what [sic] confused as to what you have denied because I have only place [sic] a motion for discovery into the court which by no means would be misconstrued as a writ application.
If you would be kind enough to have the clerk of court send me a copy of the writ that you have denied so that I may determine whether someone has inadvertvently [sic] filed an application using my name, or whether this was some kind of malicious act by an individual here.
I can assure you that I have not filed any type of writ into this Honorable Court other than a post conviction application that was denied quite some time ago. The date of denial for the post conviction application was January 23, 1995. As you can see this would not warrant another denial some 16 months later.
State Rec., Vol. I of VII, letter dated May 17, 1996 (emphasis in original). Therefore, while deficiencies in the state record prevent this Court from determining exactly when the state district court ruled on petitioner's supplemental brief, petitioner's letter clearly evinces his understanding that he had no post-conviction applications pending in the state district court when the Antiterrorism and Effective Death Penalty Act of 1996 went into effect on April 24, 1996.
In re Luckett, No. 95-K-1061 (La.App. 4th Cir. Sept. 8, 1995) (unpublished); State Rec., Vol. I of VII.
On or about September 9, 1999, petitioner apparently filed with the state district court a second post-conviction application which was denied on April 5, 2000. Petitioner filed with the Louisiana Fourth Circuit Court of Appeal an application for a writ of review which was denied on June 16, 2000. Petitioner then filed with the Louisiana Supreme Court an application for a supervisory writ of certiorari/review which was denied on January 4, 2002.
Both petitioner and the state apparently agree that such an application was filed on or about September 9, 1999. See State Rec., Vol. I of VII, letter from petitioner dated September 9, 1999; Rec. Doc. 11, p. 9. The application does not appear to be included in the state record filed with this Court.
State Rec., Vol. V of VII, Judgment dated April 5, 2000. Without elaboration, that judgment states only: "Writ denied." However, both petitioner and the state indicate that the judgment relates to the second post-conviction application. See Rec. Doc. 1, supporting memorandum, p. 6; Rec. Doc. 11, p. 9.
State Rec., Vol. V of VII.
State v. Luckett, No. 2000-K-1004 (La.App. 4th Cir. June 16, 2000) (unpublished); State Rec., Vol. V of VII.
State Rec., Vol. V of VII.
State ex rel. Luckett v. State, 805 So.2d 1191 (La. 2002); State Rec., Vol. V of VII.
On May 13, 2002, petitioner filed his application for federal habeas corpus relief, alleging numerous grounds for relief. The state argues that petitioner's application is untimely. Petitioner disagrees, essentially arguing that his petition is timely because it based on newly discovered evidence.
Rec. Doc. 1. Petitioner signed his application for federal habeas corpus relief on May 13, 2002. That date represents the earliest date that petitioner could have presented his application to prison officials for mailing and, therefore, the earliest date that this Court could deem his habeas petition to have been filed for statute of limitations purposes. See Cooper v. Brookshire, 70 F.3d 377, 379-80 (5th Cir. 1995) (citing Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988)).
Rec. Doc. 11, pp. 7-14.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") established a one-year statute of limitations for the filing of federal habeas corpus applications. The method for calculating a petitioner's one-year period is set forth in 28 U.S.C. § 2244(d)(1), which 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 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 due diligence.
The crux of the dispute between the parties is a disagreement over which subsection of § 2244(d)(1) is applicable when determining the point at which petitioner's one-year period commenced. The state argues that § 2244(d)(1)(A) is applicable in the instant case. Petitioner essentially argues that § 2244(d)(1)(D) is applicable. Ultimately, however, it does not matter which subsection is applied. For the reasons set forth below, petitioner's application is untimely under both § 2244(d)(1)(A) and § 2244(d)(1)(D).
28 U.S.C. § 2244(d)(1)(A)If 28 U.S.C. § 2244(d)(1)(A) is applicable, the computation of the statute of limitations would be as follows:
As noted, petitioner's conviction became final on October 1, 1992, prior to the enactment of the AEDPA. With respect to prisoners whose convictions and sentences became final prior to the enactment of the AEDPA, the United States Fifth Circuit Court of Appeals has held that a one-year grace period applies and that the one-year statute of limitations began to run for such prisoners on the effective date of the AEDPA, April 26, 1996. Moore v. Cain, 298 F.3d 361, 365 (5th Cir. 2002);Flanagan v. Johnson, 154 F.3d 196, 200-02 (5th Cir. 1998);see also United States v. Flores, 135 F.3d 1000 (5th Cir. 1998) (applying one-year grace period to actions filed pursuant to 28 U.S.C. § 2255). Therefore, petitioner had until April 26, 1997, to file his federal habeas corpus application. Because his application was not filed until May 13, 2002, it is untimely.
The Court notes that the April 26, 1997, deadline could have been extended had petitioner properly filed in state court an application for post-conviction relief or other collateral review attacking his convictions or sentences during the one-year period. See Fields v. Johnson, 159 F.3d 914 (5th Cir. 1998); 28 U.S.C. § 2244(d)(2). However, petitioner filed no such state applications during that period.
The Court notes that petitioner filed a number of applications over the years regarding production of documents. At least one of those applications was apparently pending during a portion of this period. See supra note 7. However, applications requesting productions of documents have no bearing on the timeliness of petitioner's federal application. Such applications cannot fairly be considered applications for state post-conviction relief or other collateral review for tolling purposes because they were preliminary in nature and did not directly call into question the validity of petitioner's conviction or sentence. Boyd v. Ward, Civil Action No. 01-493, 2001 WL 533221, at *4 (E.D. La. May 15, 2001).
Moreover, although petitioner filed state post-conviction applications after the expiration of the one-year grace period, those applications and the related appellate court proceedings likewise have no bearing on the timeliness of petitioner's federal application. See Magee v. Cain, Civil Action No. 99-3867, 2000 WL 1023423, at *4 (E.D. La. July 24, 2000) ("A proper application for state post-conviction relief . . . filed after the expiration of the AEDPA's one-year grace period cannot convert [a petitioner's] federal writ of habeas corpus into a timely filed petition".), aff'd, 253 F.3d 702 (5th Cir. 2001);Williams v. Cain, Civil Action No. 00-536, 2000 WL 863132, at *2 (E.D. La. June 27, 2000).
The Court further notes that the AEDPA statute of limitations can, in rare and exceptional circumstances, be equitably tolled.See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). However, "[e]quitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights." Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (internal quotes and citations omitted). This Court knows of no reason that would support equitable tolling of the statute of limitations.
Both petitioner and the state discuss whether petitioner is entitled to equitable tolling based on his argument that at least some of his claims are premised on information contained in the District Attorney's file to which he was allegedly denied access until 1999. However, tolling on that basis would not be equitable tolling, but rather statutory tolling pursuant to 28 U.S.C. § 2244(d)(1)(D). Nevertheless, even if the Court were to consider equitably tolling the statute of limitations on that basis, petitioner's federal application would still be untimely for the same reasons noted in the following discussion of timeliness under 28 U.S.C. § 2244(d)(1)(D).
28 U.S.C. § 2244(d)(1)(D)Petitioner argues that his application should be considered timely because at least some of his claims are based on information in the District Attorney's file which was allegedly withheld from him until 1999. Petitioner's argument implicates 28 U.S.C. § 2244(d)(1)(D), which delays the commencement of the one-year AEDPA statute of limitations until "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." However, even if 28 U.S.C. § 2244(d)(1)(D) were applicable to some of petitioner's claims, petitioner's federal application would still be untimely.
As the state notes in its response, some of petitioner's claims clearly were not based on information in the district attorney's file. The provisions of § 2244(d)(1)(D) obviously would not affect the timeliness of those claims. However, in that none of petitioner's claims would be timely pursuant to § 2244(d)(1)(D), this Court need not determine which claims might otherwise fall within that exception and which ones clearly would not.
In his "traverse" filed with this Court, petitioner states:
The prosecutor continued to deny petitioner the district attorney's file until 1998. Petitioner received a letter saying the DA.'s file was recounted and found to contain 1,000 pages at a cost of $500 dollars. Petitioner's mother borrowed the five hundred dollars and purchased the file on 12/30/98. (see exhibits 2 to traverse). Petitioner received the file containing the newly discovered evidence on 3/17/99. (see Traverse exhibit 3).
Rec. Doc. 19, pp. 2-3.
Therefore, even if § 2244(d)(1)(D) were applied, and even if this Court assumes that petitioner could not, through the exercise of due diligence, have obtained the district attorney's file any earlier than the date on which he actually received it, his one-year period would have commenced no later than March 17, 1999.
One hundred seventy-five (175) days of petitioner's one-year period would have expired before the period was first tolled by his filing of his post-conviction application with the state district court on September 9, 1999. That application was denied on April 5, 2000. Assuming that petitioner's subsequent application for a writ of review was timely filed with the Louisiana Fourth Circuit Court of Appeal, the statute of limitations remained tolled until the date on which petitioner's period for seeking review of the intermediate appellate court's judgment expired. Melancon v. Kaylo, 259 F.3d 401, 406-07 (5th Cir. 2001). For the reasons set forth below, this Court finds that date to be no later than July 21, 2000.
See supra note 9.
See supra note 10.
The parties disagree as to the date on which that writ application was filed. Because the state record does not include a date-stamped copy of the application, and because petitioner's federal application is untimely in any event, this Court will assume for the purposes of this opinion that the writ application was timely filed.
The Louisiana Fourth Circuit Court of Appeal denied petitioner's application for a writ of review on June 16, 2000. The Rules of the Louisiana Supreme Court provide in pertinent part:
State v. Luckett, No. 2000-K-1004 (La.App. 4th Cir. June 16, 2000) (unpublished); State Rec., Vol. V of VII.
An application seeking to review a judgment of the court of appeal . . . after that court has granted relief on an application for supervisory writs . . . or after a denial of an application, shall be made within thirty days of the mailing of the notice of the original judgment of the court of appeal.
Louisiana Supreme Court Rule X, § 5(a) (emphasis added). The state record filed with this Court contains no evidence of the date on which the notice of the intermediate appellate court's judgment was mailed. However, on June 21, 2000, petitioner sent to the intermediate appellate court a request for rehearing which was rejected and returned to him as improperly submitted on June 23, 2000. Therefore, it is indisputable that petitioner had in his possession the intermediate appellate court's judgment on June 21, 2000. Accordingly, while this Court cannot determine the exact date on which the notice of judgment was mailed, it could not have been mailed later than June 21, 2000. Therefore, giving petitioner the benefit of every doubt, petitioner's thirty-day period for seeking review of that judgment in the Louisiana Supreme Court expired no later than July 21, 2000. Because petitioner failed to file a writ application on or before that date, his post-conviction application ceased to be pending and the statute of limitations resumed running on July 21, 2000. Melancon, 259 F.3d at 407.
Rec. Doc. 20.
Rec. Doc. 20. In its letter rejecting the filing, the Louisiana Fourth Circuit Court of Appeal indicated that the applicable court rules do not provide for rehearing of a decision denying a writ application.
On November 22, 2000, petitioner filed with the Louisiana Supreme Court an untimely writ application seeking review of the intermediate appellate court's judgment. Therefore, this Court must determine what effect, if any, the untimely filing in the Louisiana Supreme Court had on the AEDPA statute of limitations. That answer is found in Williams v. Cain, 217 F.3d 303 (5th Cir. 2000).
The application was signed on October 30, 2000, and date stamped as having been filed on November 22, 2000.
In Williams, the petitioner filed an untimely writ application with the Louisiana Supreme Court in May, 1995, prior to enactment of the AEDPA. That application was subsequently denied without reasons assigned in April, 1997. The United States Fifth Circuit Court of Appeals found that the untimely writ application had no effect on the AEDPA statute of limitations, holding that: "No tolling applies. The period for filing a section 2254 petition expired on April 24, 1997." Id. at 311. Therefore, in light of Williams, this Court must conclude that, at least when the Louisiana Supreme Court denies an untimely writ application without assigning reasons, the federal statute of limitations is not tolled during the time that application is pending before the Louisiana Supreme Court.
In Williams, the Fifth Circuit noted: "This court need not reach the issue of the status of [petitioner's] application under section 2244(d)(2) had the Louisiana Supreme Court considered the untimely application and denied it on substantive grounds." Williams, 217 F.3d at 310 n. 8.
In the instant case, as in Williams, the Louisiana Supreme Court denied petitioner's untimely writ application without assigning reasons. Pursuant to Williams, that writ application had absolutely no effect on the AEDPA statute of limitations.
State ex rel. Luckett v. State, 805 So.2d 1191 (La. 2002); State Rec., Vol. V of VII.
Therefore, on July 21, 2000, the date on which petitioner's period for seeking timely review of the intermediate appellate court's judgment expired, the running of the statute of limitations resumed and continued to run uninterrupted by the untimely Louisiana Supreme Court filing. For the reasons previously noted, one hundred seventy-five (175) days of petitioner's one-year period had already elapsed prior to July 21, 2000. Therefore, only one hundred ninety (190) days of petitioner's one-year period remained. Accordingly, petitioner had only until January 29, 2001, either to again toll the statute of limitations by filing another application for state post-conviction relief or other collateral review or to file his federal habeas corpus application. Between July 21, 2000, and January 29,2001, petitioner filed neither a properly filed application for post-conviction relief or other collateral review in the Louisiana state courts nor a habeas corpus petition in federal court. Moreover, while equitable tolling of the statute of limitations is warranted in some circumstances, this Court knows of no reason that would support equitable tolling of the statute of limitations in this case.
Technically, the one-year period expired on January 27,2001. However, because that date fell on a Saturday, the AEDPA statute of limitations was extended until the end of the following Monday, January 29, 2001. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998) ("We hold that [Fed.R.Civ.P.] 6(a) applies to the computation of the one year limitation period in § 2244(d) of AEDPA."); Fed.R.Civ.P. 6(a) (if the last day of an applicable period is a Saturday, a Sunday, or a legal holiday, the period runs until the end of the next day that is not one of those days).
The only application filed during that time was the untimely writ application filed with the Louisiana Supreme Court on November 22, 2000. However, as previously noted, Williams dictates that the statute of limitations was unaffected by that application. The Court notes, however, that even if the four hundred nine (409) days during which the writ application was pending before the Louisiana Supreme Court were tolled, the result herein would not change. Prior to the filing of the writ application on November 22, 2000, a total of two hundred ninety-eight (298) days of petitioner's one-year period had elapsed. After the Louisiana Supreme Court denied the application on January 4, 2002, petitioner waited an additional one hundred twenty-nine (129) days to file his federal application on May 13, 2002. Therefore, even under that scenario, petitioner's federal application would been filed sixty-two (62) days too late.
See page 7 of this opinion.
Accordingly, even if, as petitioner argues, 28 U.S.C. § 2244(d)(1)(D) is applicable, his federal application would be timely only if it was filed on or before January 29, 2001. Because his application was not filed until May 13, 2002, it is untimely.
RECOMMENDATION
Accordingly, IT IS RECOMMENDED that Tonnie C. Luckett's petition for federal habeas corpus relief BE DISMISSED WITH PREJUDICE.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation contained in a magistrate judge's report and recommendation within 10 days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).