REPORT AND RECOMMENDATION

JOSEPH C. WILKINSON, JR., 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 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. Upon review of the entire record, I have determined that a federal evidentiary hearing is unnecessary. See 28 U.S.C. § 2254(e)(2).1 For the following reasons, I recommend that the instant petition for habeas corpus relief be DISMISSED WITH PREJUDICE as time-barred.

I. FACTUAL BACKGROUND

The petitioner, Chazmon James, is a convicted inmate incarcerated in the Winn Correctional Center in Winnfield, Louisiana.2 On April 19, 2011, James was charged in Washington Parish by bill of information with attempted second degree murder.3 The Louisiana First Circuit Court of Appeal summarized the facts established at trial:

State v. James, No. 2012-KA-1817, 2013 WL 5915219, at *1 (La. App. 1st Cir. 2013); State Record Volume 3 of 4, Louisiana First Circuit Court of Appeal Opinion, 2012-KA-1817, page 2, November 1, 2013.

James was tried before a jury on April 23 and 24, 2012, and found guilty as charged.4 Following hearings on May 29 and 31, 2012, the state trial court denied James's motion for a new trial.5 On July 9, 2012, the court sentenced James to 40 years in prison without benefit of parole, probation or suspension of sentence.6 Several weeks later, James's trial counsel filed another motion for a new trial and a motion to amend the motion for new trial and for reconsideration of the sentence, which the state trial court denied on July 30, 2012.7

On direct appeal, James's appointed counsel asserted two errors:8 (1) The state trial court erred by refusing the introduction of evidence at the hearing on the motion for new trial. (2) The victim's recantation was credible and would have changed the verdict.

On April 23, 2013, three weeks after James's appeal brief was filed on April 4, 2013, his trial counsel filed another motion for new trial in the state trial court based on new evidence.9 On May 8, 2013, the state trial court denied the motion because there was no showing that the evidence previously was not discoverable, citing La. Code Crim. P. art. 851(3).10

On July 10, 2013, the Louisiana First Circuit granted James's motion to remand the matter to allow the state trial court to rule on his motion for new trial.11 On July 24, 2013, the state trial court issued an order indicating that it had already denied all of the motions for new trial on or before May 8, 2013, and none were then pending.12

On August 28, 2013, the Louisiana First Circuit remanded the matter again specifying that, due to appeal, the trial court was divested of jurisdiction when it entered the May 8, 2013, order addressing James's April 23, 2013, motion for new trial.13 The court ordered the trial court to "rule anew" on that specific motion.

On September 6, 2013, the state trial court complied and denied James's motion for new trial, because he made no showing that the evidence was not previously discoverable, citing La. Code Crim. P. arts. 894, 856.14 On September 16, 2013, the state trial court denied James's motion to reconsider that ruling.15

On November 1, 2013, the Louisiana First Circuit affirmed James's conviction and sentence, finding meritless the claims asserted in his appeal.16 On January 17, 2014, the appellate court denied James's application for rehearing.17

James's conviction became final 30 days later, on Tuesday, February 18, 2014,18 when he did not seek review in the Louisiana Supreme Court. See Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (citing Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003) (an appeal is final when the state defendant does not timely proceed to the next available step in an appeal process)); La. S. Ct. R. X§5.

On March 10, 2014, and April 14, 2014, the state trial court denied as untimely two subsequent motions for new trial filed by James's trial counsel.19 He did not seek review of either order.

On October 12, 2015, with new counsel, James filed an application for post-conviction relief asserting the following grounds:20 (1) James was denied effective assistance of counsel when trial counsel gave erroneous advice concerning the plea bargain. (2) James was denied effective assistance on appeal when appellate counsel failed to assert meritorious claims on appeal. (3) James was denied due process during sentencing, because the state trial court considered his arrest on a first degree murder charge at the sentencing. On January 25, 2016, the state trial court denied relief finding the claims meritless.21

On June 21, 2016, the Louisiana First Circuit denied without stated reasons the related writ application filed by counsel.22 On December 15, 2017, the Louisiana Supreme Court denied James's counsel-filed writ application, finding the ineffective assistance of counsel claims meritless under Strickland v. Washington, 466 U.S. 668 (1984), and the sentencing claim not cognizable on post-conviction review under La. Code Crim. P. art. 930.3 and State ex rel. Melinie v. State, 665 So.2d 1172 (La. 1996).23

III. FEDERAL HABEAS PETITION

On July 9, 2018, after correction of certain deficiencies, the clerk of this court filed James's federal habeas corpus petition in which he asserts the following grounds for relief:24 (1) He was denied due process when he was not allowed to introduce evidence or proffer testimony in support of the motion for a new trial. (2) He was denied effective assistance when counsel gave erroneous legal advice related to the plea offer. (3) His post-conviction counsel provided ineffective assistance, because counsel failed properly to litigate the claim of ineffective assistance of trial counsel related to the plea offer. (4) He was denied effective assistance of appellate counsel for failure to assert claims based on objections made at trial.

The State filed a response in opposition to James's federal petition, asserting that the petition is time-barred, and reserving its right to assert other defenses and address the merits of the claims, if necessary.25

James filed a reply to the State's opposition in which he argues that he is entitled to equitable tolling.26 James asserts that his appointed appellate counsel, Frank Sloan, was supposed to file a writ application with the Louisiana Supreme Court after the direct appeal. He claims that Sloan "became very ill" during the time the "brief to the Louisiana Supreme Court should have been prepared and filed" and subsequently died.27 James claims to not know that Sloan died or that no brief had been filed until September 2015, when his mother was contacted by the Louisiana Appellate Project and given James's paperwork.28 James asserts that he then sought to retain counsel to pursue post-conviction relief in the state courts. James argues that he is entitled to equitable tolling for the period of time from issuance of the Louisiana First Circuit's appellate opinion on December 1, 2013, through his discovery of the death of counsel in September 2015, which would render his federal petition timely filed.

III. GENERAL STANDARDS OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, comprehensively revised federal habeas corpus legislation, including 28 U.S.C. § 2254. The AEDPA went into effect on April 24, 199629 and applies to habeas petitions filed after that date. Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). The AEDPA therefore applies to James's petition, which, for reasons discussed below, is deemed filed on June 11, 2018.30 The threshold questions in habeas review under the amended statute are whether the petition is timely and whether petitioner's claims were adjudicated on the merits in state court; i.e., the petitioner must have exhausted state court remedies and must not be in "procedural default" on a claim. Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).

The State asserts and the record establishes that James's federal petition was not timely filed, and I also find that state court review of two of his claims has not been exhausted.31 For the following reasons, I recommend that James's petition be dismissed with prejudice as time-barred.

IV. STATUTE OF LIMITATIONS

The AEDPA requires that a Section 2254 petition must ordinarily be filed within one year of the date the conviction became final.32 Duncan v. Walker, 533 U.S. 167, 179-80 (2001). James's conviction became final on February 18, 2014, when he did not seek review of his direct appeal in the Louisiana Supreme Court. Applying Section 2244 literally, James had one year from finality of his conviction, until February 18, 2015, to file his federal habeas corpus petition, which he did not do. His petition must be dismissed as untimely, unless the one-year statute of limitations was interrupted or otherwise tolled in either of the following two ways recognized in the applicable law.

First, the United States Supreme Court has held that AEDPA's one-year statute of limitations period in Section 2244(d)(1) may be equitably tolled only when the petitioner has pursued his rights diligently and rare or extraordinary circumstances exist which prevented timely filing. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); 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 only in situations in which the petitioner was actively misled or is prevented in some extraordinary way from asserting his rights. Pace, 544 U.S. at 418-19; Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002).

In support of his request for equitable tolling, James asserts in this court for the first time that he thought his appointed appellate counsel would file a Louisiana Supreme Court writ application following his direct appeal.33 He also contends that he was unaware that no writ application had been filed until his mother was advised in September 2015 that his appointed appellate counsel had died.

The Louisiana First Circuit decided James's direct appeal on November 1, 2013, and denied his request for rehearing on January 17, 2014. Under La. S. Ct. R. X § 5, James had 30 days from January 17, 2014, or until Tuesday, February 18, 2014,34 to file a writ application with the Louisiana Supreme Court.

According to the records of the Louisiana State Bar Association, James's appellate counsel, Frank Sloan, died on March 30, 2014.35 Counsel's death was more than five weeks after the deadline for filing a Louisiana Supreme Court writ application, and therefore fails to establish a basis for equitable tolling. See McFadden v. Davis, No. 11-cv-85, 2012 WL 333760, at *3 (S.D. Miss. Jan. 10, 2012), report and recommendation adopted by 2012 WL 316060, at * 1 (S.D. Miss. Feb. 1, 2012).

In the informative McFadden case, the petitioner filed for federal habeas relief claiming his entitlement to equitable tolling. Id. McFadden asserted that, after his direct appeal was denied on May 23, 2006, he paid retained counsel "to tak[e] care of" filing a writ application in the Mississippi Supreme Court. Id. at *3. McFadden claimed that in April 2008, after his counsel died, his father called the state supreme court and learned that no writ application had been filed. McFadden argued that, until that time, he believed that his retained counsel had filed what needed to be filed. The federal district court found that McFadden had not established that his counsel was obligated to file further pleadings and that his assumption that counsel was handling the matter did not establish any deception by counsel or otherwise justify equitable tolling. Id. at * 3 (citing Cousin, 301 F.3d at 849 ("mere attorney error or neglect is not an extraordinary circumstance such that equitable tolling is justified")); see, Marte v. Brown, No. 09-1036, 2010 WL 1644271, at *4 (S.D.N.Y. Apr. 10, 2010) (petitioner not entitled to equitable tolling because he failed to establish causal link between counsel's death in 2005 and the three and one-half year delay in filing his federal habeas in 2008, and petitioner's failure to keep abreast of the status of his own case, demonstrated a lack of diligence.)

Similarly, James has offered no evidence, beyond his mere allegation, sufficient to establish that his appointed appellate counsel had committed to file a Louisiana Supreme Court writ application after the direct appeal was decided on November 1, 2013, or after the rehearing application (also filed by appellate counsel) was denied on January 17, 2014; or that counsel was too sick to do so, when circumstances indicate that the deadline for filing the writ application was more than five weeks before counsel's death.

In addition, during this same time period, James was still represented by his trial counsel on a motion for a new trial filed in the state trial court on February 12, 2014, and denied by the court on March 10, 2014. His trial counsel also filed another motion for a new trial on April 3, 2014, which was denied by the state trial court on April 14, 2014. Under these circumstances, James establishes no basis for this court to extend the extraordinary remedy of equitable tolling because his appointed appellate counsel died after the conviction was final and while he still was represented by his trial counsel. James has not demonstrated that he is entitled to equitable tolling as a result of the death of his appellate counsel.

Even assuming that counsel's death was somehow extraordinary, the courts have recognized that "even if a prisoner shows that `extraordinary circumstances' occurred, the prisoner must still establish that he acted with due diligence in order to be entitled to equitable tolling." Powe v. Culliver, 205 F. App'x 729 (11th Cir. 2006), cert. denied, 549 U.S. 1270 (2007). In addition, "[a] party seeking equitable tolling must have diligently pursued his rights for the entire period he seeks tolled, not merely once he discovers the underlying circumstances warranting tolling." Neves v. Holder, 613 F.3d 30, 36 (1st Cir. 2010), cert. denied, 564 U.S. 1030 (2011); Marte, 2013 WL 1644271, at *4 (a petitioner's failure to keep abreast of the status of his own case demonstrates a lack of diligence).

In this case, James does not suggest or establish that he attempted to contact his appellate counsel during the period from the denial of his direct appeal on November 1, 2013, through September 2015, the almost two years during which he claims that he thought his Louisiana Supreme Court writ application was pending. He also has not established that anything prevented him or his trial counsel, who continued to represent him in 2014, from pursuing state post-conviction or other collateral review during that time period. Accord Williams v. Hoffner, No. 15-CV-11435, 2015 WL 7423812, at *4 (E.D. Mich. Nov. 23, 2015) ("The attorney's death, while unfortunate, did not impair Petitioner's own ability to pursue collateral review in state court or habeas review in federal court within the one-year grace period."). James has not established reasonable diligence in pursuing his rights sufficient to support equitable tolling in this case.

James, therefore, has asserted no reason, and I can find none, that might constitute rare or exceptional circumstances why the one-year statute of limitations period should be considered equitably tolled in his case. The record does not establish circumstances that might fit the restrictive boundaries of "exceptional circumstances" described in binding precedent to warrant equitable tolling in this case. See Holland v. Florida, 560 U.S. 631, 651-54 (2010) (equitable tolling would be warranted where attorney was more than negligent when he failed to satisfy professional standards of care by ignoring the client's requests timely to file a federal petition and in failing to communicate with the client over a period of years in spite of the client's letters); Hardy v. Quarterman, 577 F.3d 596, 599-600 (5th Cir. 2009) (equitable tolling was warranted where petitioner suffered a significant state-created delay when, for nearly one year, the state appeals court failed in its duty under Texas law to inform him that his state habeas petition had been denied, petitioner diligently pursued federal habeas relief, and he persistently inquired to the court.); United States v. Wynn, 292 F.3d 226 (5th Cir. 2002) (tolling warranted when defendant was deceived by attorney into believing that a timely motion to vacate was filed); Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. denied, 529 U.S. 1057 (2000) ("A garden variety claim of excusable neglect does not support equitable tolling."); Fisher, 174 F.3d at 715 (tolling not justified during petitioner's 17-day stay in psychiatric ward, during which he was confined, medicated, separated from his glasses and thus rendered legally blind, and denied meaningful access to the courts); Cantu-Tzin, 162 F.3d at 300 (State's alleged failure to appoint competent habeas counsel did not justify tolling); Davis, 158 F.3d at 808 n.2 (assuming without deciding that equitable tolling was warranted when federal district court three times extended petitioner's deadline to file habeas corpus petition beyond expiration of AEDPA grace period).

In addition to equitable tolling, the AEDPA itself provides for interruption of the one-year limitations period, in stating 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) (emphasis added). By its plain language, this provision does not create a new, full, one-year term within which a federal habeas petition may be filed at the conclusion of state court post-conviction proceedings. Flanagan, 154 F.3d at 199 n.1. The Supreme Court has clearly described this provision as a tolling statute. Duncan, 533 U.S. at 175-78.

The decisions of the Fifth Circuit and other federal courts have held that, because this statute is a tolling provision, the time during which state court post-conviction proceedings are pending must merely be subtracted from the one-year limitations period:

Flanagan, 154 F.3d at 199 n.1; accord Brisbane v. Beshears, 161 F.3d 1, 1998 WL 609926, at *1 (4th Cir. Aug. 27, 1998) (Table, Text in Westlaw); Gray v. Waters, 26 F.Supp.2d 771, 771-72 (D. Md. 1998).

For a post-conviction application to be considered "properly filed" within the meaning of Section 2244(d)(2), the applicant must "`conform with a state's applicable procedural filing requirements,'" such as timeliness and location of filing. Pace, 544 U.S. at 414 ("When a postconviction application is untimely under state law, `that [is] the end of the matter' for purposes of § 2244(d)(2)"); Williams v. Cain, 217 F.3d 303, 306-307 n.4 (5th Cir. 2000) (quoting Villegas v. Johnson, 184 F.3d 467, 469 (5th Cir. 1999)); Smith v. Ward, 209 F.3d 383, 384-85 (5th Cir. 2000). The timeliness consideration in Louisiana, for purposes of the AEDPA, requires application of a prison mailbox rule to state pleadings filed by a prisoner. Causey v. Cain, 450 F.3d 601, 604-05 (5th Cir. 2006).

A matter is "pending" for Section 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.'")

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, No. 99-3364, 2001 WL 995164, at *5 (3rd Cir. Aug. 30, 2001) (motion to withdraw a guilty plea is "other collateral review"). 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, 686-88 (5th Cir. 2005).

In this case, the one-year AEDPA statute of limitations began to run on February 19, 2014, the day after James's conviction became final under federal law. The period continued to run uninterrupted for one year, until February 18, 2015, when it expired. James had no properly filed application for state post-conviction relief or other collateral review during that time period that might have tolled the AEDPA one-year statute of limitations.

I recognize that, on February 12, 2014, James's trial counsel filed a motion for a new trial in the state trial court. However, it was not properly or timely filed and was denied as such by the state trial court on March 10, 2014. Similarly, the motion for new trial filed by his trial counsel on April 3, 2014, also was not properly filed and was denied by the trial court as untimely. As to both of these motions, an untimely filed state court pleading does not provide any tolling benefit under the AEDPA. See Pace, 544 U.S. at 414 ("When a postconviction petition is untimely under state law, `that [is] the end of the matter' for purposes of § 2244(d)(2)."); Butler, 533 F.3d at 317; Roberts, 319 F.3d at 693.

James, therefore, had no properly filed state court post-conviction or other collateral review pending in any state court during that time period. His next state court pleading was the application for post-conviction relief filed by his retained counsel on October 12, 2015, which was almost eight months after the AEDPA one-year filing period expired on February 18, 2015. James, however, is not entitled to tolling for a state court filing made after expiration of the AEDPA limitations period. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (state application for habeas corpus relief filed after limitations period expired does not toll the limitations period); Higginbotham v. King, 592 F. App'x 313, 314 (5th Cir. 2015) (citing Scott, 227 F.3d at 263); see also, Lookingbill v. Cockrell, 293 F.3d 256, 264 (5th Cir. 2002) (missing the AEDPA deadline by even one day renders a federal petition untimely).

Under the mailbox rule, James's federal petition is deemed filed on June 11, 2018, which was more than three years and three months after the AEDPA one-year statute of limitations expired on February 18, 2015. His federal petition was not timely filed and must be dismissed with prejudice for that reason.36

RECOMMENDATION

For the foregoing reasons, it is RECOMMENDED that Chazmon James's petition for issuance of a writ of habeas corpus under 28 U.S.C. § 2254 be DISMISSED WITH PREJUDICE as time-barred.

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. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc) (citing 28 U.S.C. § 636(b)(1)).37