KAREN WELLS ROBY, Magistrate Judge.
This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing if necessary, and to submit proposed findings and recommendations pursuant to
The petitioner, Charles Lee ("Lee"), is a convicted inmate incarcerated in the Louisiana State Penitentiary in Angola, Louisiana.
On July 18, 1997, Lee and a co-defendant, Kevron Powell, were charged by bill of information in Orleans Parish in Case No. 390-871 with possession of a stolen vehicle valued over $500.00.
On July 31, 1997, Lee and Powell, each accompanied by counsel, entered pleas of guilty to the charge.
Lee's conviction and sentence became final five (5) days later, on August 7, 1997, because he did not seek reconsideration of the sentence or move for an appeal. La. Code Crim. P. art. 914;
On April 20, 1998, the State filed a Rule to Show Cause seeking to have the Trial Court revoke Lee's probation for his failure to properly report to the probation officer and because he had been arrested on March 21, 1998, for armed robbery while in possession of a firearm or dangerous weapon.
Well over eleven (11) years later, on October 2, 2009, Lee apparently submitted to the Trial Court a motion seeking to withdraw his guilty plea on the basis that he did not know the essential elements of the offense charged and the record lacked a factual basis for the plea.
Two months later, on April 19, 2011, Lee apparently submitted another post-conviction motion challenging the jurisdiction of the state trial court to preside over his criminal case while he was a juvenile based on the United States Supreme Court's ruling in Graham v. Florida, __ U.S. __, 130 S.Ct. 2011 (2010), which addressed life imprisonment for juvenile offenders under the age of 18.
On July 21, 2011, Lee sought review of the order in the Louisiana Fourth Circuit conceding that he filed the motion under the wrong case number and that he had intended to file the motion in the 1997 case, Case No. 390-871.
On May 31, 2012, the clerk of this Court filed Lee's petition for federal habeas corpus relief, in which he alleges that the Orleans Parish Criminal District Court did not have jurisdiction over his case based on the retroactive ruling of the United States Supreme Court in Graham, which was issued on May 17, 2010.
In his reply, Lee makes clear that he is not attacking his current sentence in the 1998 case and that his intent is to only challenge the 1997 conviction for possession of a stolen automobile directly.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214,
In this case, the State contends that Lee is "arguably" in custody for purposes of this Court's jurisdiction to consider his petition and that the petition is not timely filed. While the Court agrees that Lee's petition is not timely under the AEDPA, a review of the record reflects that this Court is without subject matter jurisdiction over Lee's habeas corpus petition challenging the 1997 guilty plea and conviction, and it can be dismissed for that reason.
Title 28 U.S.C. § 2241(d) "gives the United States district courts jurisdiction to entertain petitions for habeas relief
The Maleng Court further held that a habeas petitioner is not considered to be "in custody" when his sentence has expired for the challenged conviction. Maleng, 490 U.S. at 492 (citing Carafas, 391 U.S. at 238); Hendrix v. Lynaugh, 888 F.2d 336, 338 (5th Cir. 1989) (adverse consequences of expired sentence, including possibility that conviction may be used to impeach future testimony and enhance future punishment, held insufficient to satisfy the "in custody" requirement of section 2254); accord Steverson v. Summers, 258 F.3d 520, 524 (6th Cir. 2001); Pleasant v. State, 134 F.3d 1256, 1258 (5th Cir. 1998). While recognizing that a prisoner need not be physically confined to be "in custody" for the purposes of § 2254, the Court noted:
Maleng, 490 U.S. at. 491 (emphasis in original).
For the following reasons, Lee was not in custody or serving a sentence for the 1997 conviction for possession of the stolen automobile when this petition is deemed filed on May 10, 2012. Louisiana law provides in relevant part that sentences of imprisonment for unrelated crimes "shall be served
In this case, when Lee's probation as to the 1997 guilty plea was revoked after his arrest in 1998, the state trial court ordered him to serve the previously imposed but suspended four year prison sentence with credit for time served. In reinstating Lee's prison sentence, the state trial court made no provision for that sentence to run concurrently with any other sentence. Significantly, Lee was serving the balance of the four years on the revocation sentence
In this case, however, the State suggests that Lee's Graham claim may "arguably" fall under an exception to the Lackawanna "in custody" rule since his 1997 conviction was used to enhance his current sentence on the armed robbery convictions. The United States Supreme Court has declared that only one exception exists to the "in custody" requirement. In Lackawanna and its predecessor, Daniels v. United States, 532 U.S. 374 (2001), the Supreme Court recognized this single exception to be when there is a Sixth Amendment claim that counsel was not appointed in connection with the prior conviction. Lee has made no such claim in this case.
The State cites Daniels for the proposition that other exceptions were declared which would "arguably" allow for consideration of Lee's Graham claim.
In Daniels, the Supreme Court held that, under 28 U.S.C. § 2255, when "a prior conviction [used to enhance a federal sentence] is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then the defendant is without recourse." Daniels, 532 U.S. at 382. The Court went on to comment that "[w]e recognize that there may be rare cases in which no channel of review was actually available to a defendant with respect to a prior conviction, due to no fault of his own." The Daniels Court did not define its comment. The Court followed the comment with a few citations which arguably may have been intended as examples of these "rare cases," which were newly discovered evidence and an impediment to post-conviction review created by governmental action in violation of federal law. Id. at 384. The Court, however, found that the case before it did not raise any such exception. Id. at 383.
Later, in Lackawanna, where the Court extended the Daniels holding to § 2254 petitions, the Court in dicta noted as it had in Daniels that other exceptions might exist under rare circumstances not otherwise the fault of the petitioner. Lackawanna, 532 U.S. at 405. The Court suggested that such exceptions may occur (1) when a state court, without justification, has refused to rule on a properly presented constitutional claim, and (2) where a defendant subsequently obtains compelling evidence of his actual innocence that could not have been discovered in a timely manner. Id. at 405; see also Abdus-Samad v. Bell, 420 F.3d 614, 630 (6th Cir. 2005). Neither of these circumstances exist in this case, especially considering that Lee entered a plea of guilty to the possession of stolen goods charge and his attempts to obtain relief were addressed by the state courts.
The Supreme Court did not mention, discuss, or reference a new rule of law as one of these potential exceptions in either Daniels or Lackawanna. This Court has not located any Supreme Court or other federal case that would include this as an exception to the "in custody" requirement. The State's suggestion that Lee is "arguably" in custody is baseless.
Furthermore, even if such an exception existed, the Graham case, on which Lee relies, is inapplicable to his 1997 conviction and sentence. In Graham, the Supreme Court held that, under the Eighth Amendment, "[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide," and the States must give "a juvenile offender convicted of a nonhomicide crime . . . some meaningful opportunity to obtain release." Graham, 130 S.Ct. at 2030, 2034. To be clear, the United States Fifth Circuit has resolved that this holding in Graham is a new rule of law made applicable on collateral review. In re Sparks, 657 F.3d 258, 262 (5th Cir. 2011).
Lee, however, was not sentenced to life imprisonment for the conviction for possession of stolen goods, and he most definitely was sentenced with an opportunity for release. As outlined previously, Lee's four year sentence was initially suspended, and he was placed on active probation. Lee was returned to jail on that charge only after he chose to commit two additional violent crimes in 1998 while still on probation. The holding is Graham is not applicable to Lee's 1997 conviction or sentence for possession of a stolen automobile.
Lee naively suggests that Graham also declared a new rule of law that state district courts lack jurisdiction over criminal charges against juveniles under the age of 18. He claims that this "new rule" demonstrated that the Orleans Parish Criminal District Court did not have jurisdiction over his possession of a stolen automobile case which occurred when he was only 17. The Graham Court made no such decree on the jurisdictional requirements of the state courts over juveniles under the age of 18. That was not an issue in or ruling of the case.
In fact, the references in Graham to the "age of 18" as a relevant maturity transition point are direct references to its 2005 opinion in Roper v. Simmons, 543 U.S. 551 (2005), in which the Court addressed the unconstitutionality of the execution of individuals under the age of 18 in capital cases. Id. at 574. In Roper, the Court repeatedly distinguished between "juveniles under 18 and adults" in reaching its decision. E.g., Roper, 543 U.S. at 569, 573-74. In doing so, the Roper Court resolved that "[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood." Id. at 574. This is one of the many quotes from Roper relied upon in Graham to support its holding regarding life sentences for juvenile offenders. Graham, 130 S.Ct. at 2030. Clearly, Graham was not the Supreme Court's first declaration that juveniles can be defined as those individuals under the age 18. Lee's suggestion that this facet of the Graham opinion was "new law" is erroneous.
Thus, to the extent Daniels or Lackawanna would allow an exception to the "in custody" requirement for a new and retroactive rule of law, it would not enure to Lee's benefit in this case. For the foregoing reasons, the State's suggestion that Lee is "arguably" in custody is not wellfounded. Lee is not in custody for purposes of challenging the 1997 conviction and he meets no recognized exception to that requirement. His petition should be dismissed for that reason.
Nevertheless, should Lee's case be found to fall within any of the narrow exceptions, and out of an abundance of caution, the Court will also address the State's limitations defense.
The AEDPA as codified at § 2244(d), provides that a habeas petitioner has one year to file a petition from one of four possible commencement points:
Lee does not assert and the record does support any basis for considering a commencement date under § 2244(d)(1)(B) or (D) where an impediment or new factual predicate exists.
As the Court has already discussed in detail and concluded, the Graham opinion did not address the jurisdiction of a state district court over juvenile proceedings nor did it create a new rule of law defining juveniles as those under the age of 18. The language in Graham referencing the "age of 18" as the pinnacle distinction between adults and juveniles was taken from the Court's 2005 opinion in Roper. See Graham, 130 S.Ct. at 2030. The Roper case also cites back to even older Supreme Court opinions addressing the rights of juveniles under the age of 18. Thus, even before 2005, the Supreme Court had clearly recognized the age of 18 is the general age of distinction with regard to sentencing ramifications.
The Court also notes that the Supreme Court did
Lee's arguments in this regard are misplaced. He has not established that he is entitled to a commencement of the AEDPA one-year filing period under § 2244(d)(1)(C), running from the issuance of Graham. Therefore, the sole remaining commencement date for Lee to have presented his federal habeas petition was the date of the finality of his conviction.
Under § 2244(d)(1)(A), a petitioner must bring his § 2254 claim within one year of the date his conviction became final. Duncan v. Walker, 533 U.S. 167, 176-80 (2001). The record is clear in this case, that Lee has not met this provision.
As previously outlined, Lee's conviction was final on August 7, 1997, which was five days after he entered his plea of guilty and was sentenced. Under the plain language of § 2244, Lee had one year, or until August 7, 1998, to file a timely federal application for habeas corpus relief, and he failed to do so. Thus, literal application of the statute would bar Lee's § 2254 petition as of that date unless he is entitled to tolling as provided for by the AEDPA.
Section 2244(d)(2) provides that the 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. See 28 U.S.C. § 2244(d)(2) (2006). In order for a state post-conviction application to be considered "properly filed" within the meaning of § 2244(d)(2), the applicant must have complied with all of the State's procedural requirements, such as timeliness and place of filing. Pace v. DiGuglielmo, 544 U.S. 408, 413-14 (2005); Williams v. Cain, 217 F.3d 303, 306-07 & n.4 (5th Cir. 2000) (quoting Smith v. Ward, 209 F.3d 383, 384-85 (5th Cir. 2000)); Villegas v. Johnson, 184 F.3d 467, 468-69 (5th Cir. 1999), reh'g denied, 196 F.3d 1259 (5th Cir. 1999) (Table). For purposes of the AEDPA, a timeliness calculation in Louisiana requires the application of the prison mailbox rule to state pleadings. Causey v. Cain, 450 F.3d 601, 604-05 (5th Cir. 2006). The Court has applied this rule in presenting the procedural history recited above.
A matter is "pending" for § 2244(d)(2) purposes "as long as the ordinary state collateral review process is `in continuance.'" Carey v. Saffold, 536 U.S. 214, 219-20 (2002); Williams, 217 F.3d at 310 (a matter is "pending" for Section 2244(d)(2) purposes until further appellate review is unavailable under Louisiana's procedures.'") (quoting Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000)); see also Melancon v. Kaylo, 259 F.3d 401, 405 (5th Cir. 2001).
The phrase "other collateral review" in the statute refers to state court proceedings challenging the pertinent judgment subsequently challenged in the federal habeas petition. Dillworth v. Johnson, 215 F.3d 497, 501 (5th Cir. 2000) (state habeas petition challenging a prior conviction in one county was other collateral review even though filed as a challenge to a second conviction in a different county); Nara v. Frank, 264 F.3d 310, 316 (3d Cir. 2001) (motion to withdraw a guilty plea is "other collateral review"), overruled on other grounds by Carey, 536 U.S. at 214. A "pertinent judgment or claim" requires that the state filings for which tolling is sought must have challenged the same conviction being challenged in the federal habeas corpus petition and must have addressed the same substantive claims now being raised in the federal habeas corpus petition. Godfrey v. Dretke, 396 F.3d 681, 687-88 (5th Cir. 2005).
In the instant case, Lee's conviction was final on August 7, 1997. The AEDPA filing period began to run the next day, on August 8, 1997, and did so uninterrupted for 365 days, until August 7, 1998, when it expired. Lee had no properly filed state post-conviction or other collateral review pending at that time related to this conviction. Lee did not initiate any post-conviction proceedings related to this conviction until eleven (11) years later when he submitted a motion to withdraw his guilty plea on October 2, 2009. A filing made after the AEDPA filing period has expired does not afford him any tolling. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
The post-AEDPA jurisprudence also provides for equitable tolling where rare or extraordinary circumstances may have prevented a diligent petitioner from timely pursuing federal habeas corpus. Pace, 544 U.S. at 418; Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert. denied, 531 U.S. 1164 (2001); Cantu-Tzin v. Johnson, 162 F.3d 295, 299 (5th Cir. 1998); Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999). Equitable tolling is warranted
In this case, Lee has not presented, and the record does not demonstrate, any basis for extending the extraordinary remedy of equitable tolling. The doctrine does not apply here.
Lee's federal petition is deemed filed in this Court on May 10, 2012, which is almost fourteen (14) years after the AEDPA filing period expired on August 7, 1997. Therefore, Lee's federal petition was untimely filed and can also be dismissed for that reason.
For the foregoing reasons, 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
