LOUIS MOORE, Jr., Magistrate Judge.
This matter was referred to the United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings and recommendations for disposition pursuant to Title 28, United States Code, Sections 636(b)(1)(B) and (C), and, as applicable, Rule 8(b) of the Rules Governing Section 2254 cases. Upon review of the entire record, the court has determined that this matter can be disposed of without an evidentiary hearing. For the following reasons, it is hereby recommended that the instant petition be
Petitioner, Arthur Washington, currently incarcerated in Avoyelles Correctional Center, Cottonport, Louisiana, was charged by bill of information with one count of theft of goods, in violation of LSA-R.S. 14:67.10. (St. rec., vol. 1, p. 11). On June 3, 1998, a trial by jury was conducted in the Twenty-Fourth Judicial District Court for the Parish of Jefferson. On that same date, petitioner was found guilty as charged. (St. rec., vol. 1, pp. 4-5). On June 19, 1998, the State filed a multiple bill of information against petitioner. (St. rec., vol. 1, pp. 41-42). On August 21, 1998, petitioner was adjudicated a third felony offender and was sentenced to life imprisonment. (St. rec., vol. 1, p. 54).
On September 26, 2000, pursuant to petitioner's appeal, the Louisiana Fifth Circuit Court of Appeal affirmed petitioner's conviction and adjudication as a third felony offender, but vacated petitioner's life sentence and remanded the matter for resentencing. State v. Washington, 769 So.2d 1235 (La. App. 5 Cir. 9/26/00). Thereafter, following a flurry of filings, including writ applications to the Louisiana Supreme Court by both the State and petitioner, the district court, on May 31, 2002, sentenced petitioner to a 16-year term of imprisonment. (St. rec., vol. 3).
Petitioner had five days to seek an appeal of his 16-year sentence. See La. Code Crim. P. art. 914.
Thereafter, petitioner filed two writ applications with the Louisiana Fifth Circuit Court of Appeal claiming that his sentence was excessive.
On April 8, 2003, petitioner filed his first post-conviction application with the state district court. (St. rec., vol. 4). On April 21, 2003, the state district court denied petitioner's post-conviction application on the merits. (St. rec., vol. 4). Thereafter, on June 12, 2003, the Louisiana Fifth Circuit, finding no error in the district court's ruling, likewise denied petitioner post-conviction relief. State ex rel. Washington v. Burl Cain, Warden, No. 2003-KH-0663 (La. App. 5 Cir. 06/12/03) (unpublished opinion) (St. rec., vol. 5). On June 4, 2004, the Louisiana Supreme Court denied petitioner's writ application on procedural grounds, citing La. C.Cr.P. art. 930.3 and State ex rel. Melinie v. State, 665 So.2d 1172 (La. 1996). State ex rel. Washington v. State, 876 So.2d 81 (La. 2004).
On August 1, 2006, petitioner filed his second post-conviction application with the state district court. (St. rec., vol. 5). On August 17, 2006, the district court denied petitioner's application as untimely pursuant to La.C.Cr.P. art. 930.8 and as repetitive and successive pursuant to La.C.Cr.P. art. 930.4. (St. rec., vol. 5). On October 2, 2006, the Louisiana Fifth Circuit Court of Appeal, finding no error in the district court's August 17, 2006 ruling, denied petitioner post-conviction relief. Washington v. State, No. 2006-KH-0715 (La. 5 Cir. 10/2/06) (unpublished opinion) (St. rec., vol. 5). On August 15, 2007, the Louisiana Supreme Court denied petitioner's writ application on procedural grounds, citing La.C.Cr.P. art. 930.8 and State ex rel. Glover v. State, 660 So.2d 1189 (La. 1995), along with La.C.Cr.P. art. 930.3 and State ex rel. Melinie v. State, 665 So.2d 1172 (La. 1996). State ex rel. Washington v. State, 961 So.2d 1160 (La. 2007).
On November 2, 2007, petitioner filed a federal petition for habeas corpus with this court. On October 20, 2008, petitioner's habeas application was "DISMISSED in accordance with petitioner's request for voluntary dismissal." Washington v. Cooper, No. 2007-7411 (E.D. La. Oct. 20, 2008).
While petitioner's federal habeas application was pending, he filed a series of writ applications with the state courts. Petitioner's effort in this regard culminated on January 30, 2009, when the Louisiana Supreme Court denied his writ application as untimely. State ex rel. Washington v. State, 999 So.2d 745 (La. 2009).
Shortly thereafter, petitioner filed a writ application with the Louisiana Supreme Court seeking relief pursuant to State v. Cordero, 993 So.2d 203 (La. 2008).
While the matter, writ number 2008-WR-1217, was pending, petitioner filed another writ application, assigned Writ No. 2010-KH-0107, with the Louisiana Fifth Circuit. The Fifth Circuit consolidated the two matters and, on May 12, 2010, denied relief. Washington v. State, No. 2008-WR-1217 c/w 2010-KH-0107 (La. 5 Cir. 05/12/10) (unpublished opinion) (St. rec., vol. 7). The Louisiana Supreme Court, on September 2, 2011, similarly denied relief. State ex rel. Washington v. State, 68 So.3d 533 (La. 2011).
On January 16, 2012, petitioner filed the above captioned action for federal habeas corpus relief. In its response (rec. doc. 8), the State raises procedural deficiencies in the instant petition, one of which is its alleged untimeliness.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a petitioner has one year within which to bring his habeas corpus claims pursuant to 28 U.S.C. § 2254, with this one year period commencing to run from "the latest of" either the date the petitioner's state judgment became final or the expiration of his time for seeking review.
As stated earlier, petitioner filed the instant action on January 16, 2012, over eight years after his June 5, 2003 deadline. Thus, petitioner's federal habeas corpus application must be dismissed as untimely, unless the one-year statute of limitations period was interrupted as set forth in 28 U.S.C. § 2244(d)(2). Under that statutory provision, "[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."
As noted earlier, petitioner filed two writ applications, No. 2002-KH-0646 and No. 2002-KH-0694, which were denied by the Louisiana Fifth Circuit Court of Appeal on June 27, 2002, and July 11, 2002, respectively. Because the court has been unable to verify the filing dates of the above-referenced writ applications, the court will assume, for the sake of argument, that the filings were timely and tolled prescription.
On April 8, 2003, petitioner filed his first post-conviction application, thereby tolling prescription. At that point, over eight months of petitioner's twelve-month statute of limitations had expired.
Petitioner's first post-conviction application remained pending within the state court system until June 4, 2004, when the Louisiana Supreme Court denied petitioner relief. State ex rel. Washington v. State, 876 So.2d 81 (La. 2004). Again, the court will assume arguendo that petitioner's statute of limitations remained tolled during the entire period his first postconviction application was pending in the state courts.
It was not until over two years later, on August 1, 2006, that petitioner filed his second post-conviction application. By that time, his one-year prescriptive period had long expired.
Equitable tolling is justified only in "`rare and exceptional circumstances.'" Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert. denied, 531 U.S. 1164, 121 S.Ct. 1124, 148 L.Ed.2d 991 (quoting Davis v. Johnson, 158 F.3d 806 (5th Cir 1998), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999)). It "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), cert. denied, 529 U.S. 1057, 120 S.Ct. 1564, 146 L.Ed.2d 467 (2000) (citing Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). The evidence must show that the applicant, though deterred by matters outside his or her control, was nevertheless diligent in his or her pursuit of § 2254 relief. Coleman, 184 F.3d at 403.
Petitioner offers no basis for equitably tolling prescription nor has this court's review of the record uncovered any such basis. Accordingly;
It is hereby
It is further
It is further
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within 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).
