SALLY SHUSHAN, Magistrate Judge.
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.
Petitioner, Leroy Champ, is a state prisoner incarcerated at the Avoyelles Correctional Center, Cottonport, Louisiana. In 1999, he was charged by bill of information with two counts of distribution of cocaine under Louisiana law.
Petitioner first went to trial on the second count. As to that second count, he was convicted of distribution of cocaine by a jury on December 7, 2000.
With respect to the first count in the bill of information, that count was amended to a charge of distribution of a substance falsely represented as cocaine. Petitioner then pleaded guilty to the charge as amended on March 16, 2001, and was sentenced to a concurrent term of five years imprisonment.
Petitioner did not appeal his conviction or sentence with respect to the first count; however, he did appeal his sentence as to the second count. The Louisiana Fifth Circuit Court of Appeal affirmed that sentence on November 27, 2001.
On November 5, 2008, petitioner filed a "Petition for a Writ of Habeas Corpus" with the state district court.
Petitioner thereafter filed the instant federal application for habeas corpus relief with the United States District Court for the Western District of Louisiana on May 3, 2011.
As a preliminary matter, the Court notes that petitioner has filed a motion arguing that his application should be considered under § 2241 as filed and transferred back to the Western District for disposition. Rec. Doc. 12. Petitioner is incorrect.
State prisoners may, depending on the particular circumstances, bring federal habeas corpus claims under either 28 U.S.C. §§ 2241 or 2254. Pursuant to § 2241, prisoners may bring in federal district court claims that they are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(2). In addition, § 2254 provides authority for district courts to entertain habeas claims brought by persons "in custody pursuant to the judgment of a State court." 28 U.S.C. § 2254(a). Accordingly, § 2241 is the appropriate vehicle for petitions filed prior to the conviction or which attack the manner in which the sentence is being executed, while § 2254 is proper for petitions filed after the conviction and which challenge either the legality of a conviction or the validity of the sentence.
28 U.S.C. § 2254(d).
Accordingly, petitioner's "Motion to Transfer Writ of Habeas Corpus Under 28 U.S.C. § 2241," Rec. Doc. 12, should be denied.
As noted, federal district courts have jurisdiction to entertain petitions for writs of habeas corpus from persons who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added). Once a sentence imposed for a conviction has fully expired, a federal habeas corpus petitioner is no longer considered to be "in custody" with respect to that conviction.
Clearly, petitioner remains in custody based on the twenty-year sentence imposed for his conviction on the second count. This Court therefore has subject matter jurisdiction with respect to that conviction.
However, with respect to petitioner's conviction on the first count, he received only a five-year sentence. As the state correctly notes, that sentence therefore expired long ago. Because he is no longer "in custody" with respect to that conviction, the Court lacks subject matter jurisdiction to entertain any challenge as to that conviction. That said, if the United States District Judge finds that this Court does in fact have jurisdiction to entertain such a challenge, the undersigned notes that relief should still be denied both because petitioner has not exhausted his state court remedies and, most importantly, because his federal application is clearly untimely.
Pursuant to 28 U.S.C. § 2254(b)(1)(A), a petitioner normally must first exhaust his remedies in the state courts before seeking habeas corpus relief from the federal courts. "To exhaust, a petitioner must have fairly presented the substance of his claim to the state courts."
On January 10, 2012, a staff member of this Court contacted the Louisiana Supreme Court and confirmed that petitioner had filed no applications whatsoever with that court. In light of that fact, he has not exhausted his remedies in the state courts as required by 28 U.S.C. § 2254(b)(1)(A).
Nevertheless, it would not be in the interests of justice and judicial economy to dismiss petitioner's federal application without prejudice based on the lack of exhaustion. Because the application is also clearly untimely, it should instead be dismissed
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") generally requires that a petitioner bring his Section 2254 claims within one (1) year of the date on which his underlying criminal judgment becomes "final."
Petitioner's convictions on the two counts became final at different times. Therefore, the limitations period for each count must be calculated separately.
As noted, petitioner pleaded guilty on the first count on March 16, 2001. Therefore, his criminal judgment with respect to that count became final no later than March 23, 2001, when his time expired for filing an appeal.
As to petitioner's conviction on count two, the Court of Appeal affirmed petitioner's sentence with respect to that conviction on November 27, 2001,
Accordingly, petitioner's one-year federal limitations period with respect to count one expired on March 25, 2002,
The Court first considers statutory tolling. The AEDPA provides that the statute of limitations is tolled for the period of time during which a properly filed application for state post-conviction relief or other collateral review attacking a conviction or sentence is pending in state court. 28 U.S.C. § 2244(d)(2). However, petitioner had no such state applications pending at any time during the applicable one-year limitations periods. Therefore, he clearly is not entitled to statutory tolling.
The United States Supreme Court has held that the AEDPA's statute of limitations is also subject to equitable tolling.
Because petitioner is entitled to neither statutory tolling nor equitable tolling, his federal application for habeas corpus relief with respect to his conviction on the first count had to be filed on or before March 25, 2002, and his application with respect to the second count had to be filed on or before December 27, 2002. Because his federal application was not filed until May 3, 2011, it is untimely.
Accordingly,
It is
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);
