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LeBeuf v. Cooper, 05-30866 (2007)

Court: Court of Appeals for the Fifth Circuit Number: 05-30866 Visitors: 37
Filed: Mar. 28, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 28, 2007 Charles R. Fulbruge III Clerk No. 05-30866 Summary Calendar JOSHUA ANTHONIO LEBEUF, Petitioner-Appellant, versus LYNN COOPER; CHARLES C. FOTI, JR., Respondents-Appellees. - Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:05-CV-243 - Before GARWOOD, DEMOSS and BENAVIDES, Circuit Judges. PER CURIAM:* Joshua Anthonio LeBeuf, L
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                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 March 28, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-30866
                          Summary Calendar


JOSHUA ANTHONIO LEBEUF,

                                     Petitioner-Appellant,

versus

LYNN COOPER; CHARLES C. FOTI, JR.,

                                     Respondents-Appellees.

                      --------------------
          Appeal from the United States District Court
              for the Middle District of Louisiana
                      USDC No. 3:05-CV-243
                      --------------------

Before GARWOOD, DEMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Joshua Anthonio LeBeuf, Louisiana prisoner # 409557, appeals

from the dismissal of his 28 U.S.C. § 2254 application as

time-barred pursuant to 28 U.S.C. § 2244(d).   LeBeuf challenges

his conviction of armed robbery and using a firearm during the

commission of an armed robbery.

     If it is assumed that LeBeuf’s conviction became final on

January 28, 2002, it is possible that a total of 341 countable

days elapsed between that date and March 16, 2005, when he filed

his § 2254 application.   We have extended the mailbox rule to

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                             No. 05-30866
                                  -2-

determine the filing dates for Louisiana postconviction relief

PCR applications.   See Causey v. Cain, 
450 F.3d 601
, 605-06 (5th

Cir. 2006).   LeBeuf dated the certificate of service for his PCR

application December 5, 2002.    It is unclear, however, whether

LeBeuf delivered his PCR application for mailing on December 5.

The filing of the PCR application tolled the one-year limitations

period of § 2244(d)(1) until March 10, 2004, upon the expiration

of the period for seeking a writ from the Supreme Court of

Louisiana to review the decision of the Louisiana Court of Appeal

denying LeBeuf a writ of review.    See § 2244(d)(2).   LeBeuf dated

the certificate of service on his writ application to the Supreme

Court of Louisiana March 21, 2004, but it is unclear whether he

delivered the petition for mailing on that date.    If LeBeuf

delivered the PCR for mailing on December 5, 2002, and delivered

the Supreme Court application for mailing on March 21, 2004, then

341 countable days elapsed from the date his conviction became

final.   We therefore vacate the judgment and remand the case for

determination when LeBeuf delivered his PCR application and

Supreme Court writ application to prison officials for mailing.

See 
Causey, 450 F.3d at 607
.    After this determination, the

district court should conduct such further proceedings as may be

appropriate, if any.

     VACATED AND REMANDED.

Source:  CourtListener

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