MICHAEL B. NORTH, Magistrate Judge.
This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, including an evidentiary hearing, if necessary, and to submit proposed findings 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 entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e) (2). For the following reasons,
Petitioner, Michael Williams, is a state prisoner incarcerated in the Louisiana State Penitentiary in Angola, Louisiana. On March 24, 1994, Williams was charged by grand jury indictment with aggravated rape and aggravated crime against nature in violation of Louisiana Revised Statutes 14:42 and 14:89.1.
The Louisiana Fourth Circuit Court of Appeal affirmed his convictions and sentences on December 18, 1996.
On or about August 12, 2009, more than ten years later, Williams submitted a pro se application for post-conviction relief and request for an evidentiary hearing to the state district court.
On March 24, 2014, Williams filed his federal application for habeas corpus relief.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2241 et seq., governs the filing date for this action because Williams filed his habeas petition after the AEDPA's effective date. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The AEDPA includes a one-year period of limitations for habeas petitions brought by prisoners challenging state-court judgments. Title 28 U.S.C. § 2244(d) provides, in pertinent part:
The state argues that Williams' petition is time-barred pursuant to Subsection (A), which requires that a petitioner bring his Section 2254 claims within one (1) year of the date on which his underlying criminal judgment becomes "final." As to finality, the United States Fifth Circuit Court of Appeals has explained:
Butler v. Cain, 533 F.3d 314, 317 (5th Cir.2008) (emphasis added).
In this case, the Louisiana Fourth Circuit Court of Appeal affirmed Williams' conviction and sentence on December 18, 1996. Under Louisiana law, he then had 30 days to file a writ application with the Louisiana Supreme Court to challenge that judgment. Louisiana Supreme Court Rule X, § 5(a). Because he filed no such application within that deadline, his state criminal judgment became final for purposes of the AEDPA, and his federal limitations period commenced, on January 17, 1997. See Butler, 533 F.3d at 317-18. The federal limitations period expired one year later on January 20, 1998, unless that federal deadline was extended through tolling.
The AEDPA itself provides for interruption of the one-year limitations period. Section 2244(d) (2) provides that "[t]he 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." 28 U.S.C. § 2244(d) (2). However, in Williams' case, the AEDPA one-year statute of limitations period ran without interruption for one year, until January 20, 1998, when it expired. Williams had no properly filed state-court application for post-conviction relief or other collateral review pending in any of the state courts during that period.
As the State points out, Williams' allegations implicate 28 U.S.C. § 2244(d) (1) (D). Under that subsection, the commencement of the federal limitations period is delayed if a petitioner's claim is based on a factual predicate that could not have been discovered earlier through the exercise of due diligence. The one-year limitations period begins to accrue "when the factual predicate could have been discovered through the exercise of due diligence," not when it was actually discovered by a petitioner. 28 U.S.C. § 2244 (d) (1) (D); see Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000). The United States Fifth Circuit has held "that this means the date a petitioner is on notice of the facts which would support a claim, not the date on which the petitioner has in his possession evidence to support his claim." In re Young, No. 14-51288, 2015 WL 3649765, at *9 (5th Cir. June 8, 2015), citing Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir.1998); see also Hunter v. Cain, No. 11-30978, 478 F. App'x 852 (5th Cir. June 13, 2012), citing Starns v. Andrews, 524 F.3d 612, 620-21 & n. 5 (5th Cir.2008) (holding that the relevant date under § 2244(d) (1) (D) is the date that the habeas petitioner or his criminal attorney received the information in question).
Williams contends the factual basis for his claims was unknown to him until he received and reviewed the District Attorney's file in May 2009. Williams asserts that the file contained undisclosed material evidence (referred to by Williams as a "dossier of psychiatric consultation reports"), pertaining to the victim's childhood mental and emotional problems, which he claims "calls into question both the reliability and credibility of the state's star witness, [the victim]."
Apart from Williams' conclusory assertions, there is nothing in the state-court record to establish that the psychiatric reports contained in the District Attorney's file were not disclosed to defense counsel or that he was otherwise unaware of their existence.
The one-year limitations period may also be equitably tolled in rare and exceptional circumstances where a petitioner can establish that he diligently pursued his rights and that an extraordinary circumstance hampered his ability to file his petition within the one-year federal limitations period. See Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). A petitioner bears the burden of proof to establish entitlement to equitable tolling. Alexander v. Cockrell, 294 F.3d 626, 629 (5
Williams does not set forth any basis for equitable tolling. In fact, he appears to concede his lack of diligence.
Finally, Williams claims that the limitations period should be tolled because he is actually innocent of the crimes for which he was convicted. In McQuiggin v. Perkins, the United States Supreme Court held that "actual innocence, if proved, serves as a gateway through which a petitioner may pass . . . [to excuse] the expiration of the statute of limitations." McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013). The Supreme Court has cautioned, however, that "tenable actual-innocence gateway pleas are rare [.]" Id. To succeed on this claim, Williams must present a credible claim of actual innocence based on "new reliable evidence . . . that was not presented at trial," and he "must show that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt" in light of that new evidence of his factual innocence. Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). Because actual innocence provides an exception to the statute of limitations rather than a basis for equitable tolling, a petitioner who can make a showing of actual innocence need not demonstrate reasonable diligence in bringing his claim, though a court may consider the timing of the claim in determining the credibility of the evidence of actual innocence. McQuiggin, 133 S.Ct. at 1936.
Williams has not met the rigorous burden of proof imposed under the actual innocence exception based on the newly proffered evidence. The newly discovered evidence consists of numerous psychiatric evaluations by mental health professionals rendered during the victim's childhood years. Williams contends the evidence is so powerful that it would have "totally decimated the veracity, credibility and reliability of the victim's testimony."
Williams argues that the newly discovered evidence of the victim's childhood psychiatric records shows that "the victim . . . [1 was suffering from a variety of sexual related psychological disorders and that the rape for which he accused Williams of committing, never occurred, but was an ideation resulting from a sexual gender disorder as well as other dementia afflicting [the victim's] mind since the tender age of eight (8) years old."
Even if the Court assumes that the evidence is "new" because it was not presented at trial, the evidence does not support a credible claim of actual innocence. In this case, the newly discovered evidence is not sufficient to show that no reasonable juror would have convicted Williams for these crimes had the victim's psychiatric history been presented at trial. First, a thorough review of the proffered evidence reveals that nothing objectively supports Williams' assertion that the victim had falsely reported rape attacks in the past. Apart from the strong likelihood that any such evidence would be inadmissible at trial, no such evidence even exists in this case.
The record facts as succinctly summarized by the Louisiana Fourth Circuit on direct appeal established the following:
In addition to the victim's testimony, the evidence at trial consisted of several witnesses, to whom the victim reported the rape. Furthermore, several witnesses testified at trial regarding objective physical evidence and findings that were consistent with the victim's testimony. The witnesses' testimony included that of senior night medical corpsman Michael Breslin, who stated he examined the victim and noticed a potential tear in his rectal area; emergency room physician Dr. Kevin Klauer, who testified that he examined the victim and noted three fresh and recent tears and general trauma to the periderm and genitalia which indicated force and that he detected the presence of seminal fluid on the victim under a fluorescent Wood's lamp; and finally, criminalist expert John Palm, Jr., who testified that the victim's clothing tested positive for seminal fluid.
Williams has not made the necessary showing by new evidence that he is actually innocent of the crimes of which he was convicted. Schlup, 513 U.S. at 316. Because Williams has not established that the actual innocence exception applies or that the limitations period was tolled, his petition should be dismissed as untimely.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) 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. 28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir.1996) (en banc).
