STEPHEN C. RIEDLINGER, Magistrate Judge.
Before the court on the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by Anthony White.
For the reasons which follow, the petition should be dismissed with prejudice as untimely pursuant to 28 U.S.C. § 2244(d).
Anthony White was found guilty of one count of armed robbery in the Nineteenth Judicial District Court for East Baton Rouge Parish, Louisiana on July 17, 2008. Petitioner was adjudicated a fourth felony habitual offender and was sentenced to 99 years imprisonment at hard labor without the benefit of probation or suspension of sentence.
On direct appeal the petitioner asserted four assignments of error:
The Louisiana First Circuit Court of Appeal affirmed the petitioner's conviction, habitual offender adjudication and sentence. State v. White, supra. Petitioner sought review in the Louisiana Supreme Court.
Petitioner signed an application for post-conviction relief ("PCRA") on July 12, 2011 and it was filed on July 20, 2011.
On October 15, 2012, the trial court denied the petitioner's PCRA.
Petitioner signed his application for supervisory review from the denial of his PCRA on December 13, 2012, and it was presumably filed in the Louisiana First Circuit Court of Appeal on that same date. The Louisiana First Circuit Court of Appeal denied review on January 28, 2013. State of Louisiana v. Anthony White, 2012-2075 (La. App. 1st Cir. 1/28/13).
Petitioner sought review in the Louisiana Supreme Court. The writ application was signed February 25, 2013 and it was filed February 26, 2013. The Louisiana Supreme Court denied review on July 31, 2014. State ex rel. Anthony White v. State of Louisiana, 2013-0476 (La. 7/31/13), 118 So.3d 1120.
Petitioner signed his federal habeas corpus application on September 17, 2013, and it was electronically filed that same date.
Petitioner asserted the following grounds for relief:
In its Answer to Petition For Writ of Habeas Corpus
On October 7, 2014, the parties were ordered to submit affidavits, documents, or other evidence necessary to establish when the petitioner delivered his Louisiana Supreme Court writ application to prison officials.
In the State's Reply to Court's 10/7/14 Order
In addition, an Inmate's Request for Legal/Indigent Mail receipt obtained from the petitioner's offender classification file showed that on November 24, 2009,
Under the prison mailbox rule, a prisoner's pleading is deemed to have been filed on the date that the pro se prisoner submits the pleading to prison authorities for mailing. Stoot v. Cain, 570 F.3d 669, 671 (5th Cir. 2009); Causey v. Cain, 450 F.3d 601, 604 (5th Cir. 2006) (citing Houston v. Lack, 487 U.S. 266, 270-71, 108 S.Ct. 2379 (1988).
The record evidence supports a finding that the petitioner submitted his Louisiana Supreme Court writ application to prison officials for mailing no earlier than November 24, 2009.
Under Louisiana Supreme Court Rule X, § 5(a), a petition for review must be filed "within thirty days of the mailing of the notice of the original judgment of the court of appeal." The Louisiana First Circuit Court of Appeal mailed its decision to the petitioner's appellate counsel on October 23, 2009.
Under § 2244(d), as amended by the Antiterrorism and Effective Death Penalty Act, a prisoner in custody pursuant to the judgment of a state court has a one year period within which to file an application for a writ of habeas corpus. The limitation period runs from the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A).
As provided by § 2254(d)(2), 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 under this subsection. A "properly filed application" is one submitted according to the state's procedural requirements, such as the rules governing the time and place of filing. Lovasz v. Scig, 134 F.3d 146, 148-49 (3rd Cir. 1998); Galindo v. Johnson, 19 F.Supp.2d 697, 701 (W.D.Tex. 1998). A court must look to state law to dertermine whether a state habeas application conforms to the state's procedural filing requirements. Wion v. Quarterman, 567 F.3d 146, 148 (5th Cir. 2009).
A state application is "pending" during the intervals between the state court's disposition of a state habeas corpus petition and the petitioner's timely filing of petition of review at the next level. Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001). An application ceases to be "pending" within the meaning of § 2244(d)(2) when the petitioner fails to timely file an application for supervisory review at the next level. Id. at 407. A state court's subsequent decision to allow review may toll the time relating directly to that application, but it does not change the fact that the application was not pending prior to the application. Id. After the period for appeal or seeking discretionary review has lapsed, an application ceases to be pending, but a subsequent properly filed application entitles the petitioner to additional tolling beginning at the time of the "proper" filing. Id.
Petitioner's conviction became final on November 23, 2009.
Absent a state-created impediment or equitable tolling, the petitioner's federal habeas corpus petition is untimely. To establish a state-created impediment, "the prisoner must show that: (1) he was prevented from filing a petition (2) by State action (3) in violation of the Constitution or federal law." Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003). That is, the petitioner must show that the delay actually prevented him from filing a § 2254 petition in violation of the Constitution or federal law. See id. at 436-37. Petitioner did not allege a state-created impediment nor has he made the requisite showing of one.
Nor is there any basis in the record for eqitable tolling. The one-year federal limitations period is subject to equitable tolling only "in rare and exceptional circumstances." United States v. Patterson, 211 F.3d 927, 928 (5th Cir. 2000). The doctrine "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). "A petitioner's failure to satisfy the statute of limitations must result from external factors beyond his control; delays of the petitioner's own making do not qualify." In re Wilson, 442 F.3d 872, 875 (5th Cir. 2006). Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 1814 (2005).
Assuming the petitioner completed and signed his Louisiana Supreme Court writ application on November 19, 2009, there is no evidence that any rare, exceptional or extraordinary circumstance — something beyond his control — prevented him from submitting it to prison officials for transmittal to that court from November 19 to November 23, 2009. Consequently, there is no basis for equitable tolling.
It is the recommendation of the magistrate judge that the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by Anthony White be dismissed, with prejudice, as untimely pursuant to 28 U.S.C. § 2244(d).
It is further recommended that a certificate of appealability be denied for the reasons set forth herein.
