Opinion
Civil Action No. 02-0485, Section: "I"
July 9, 2002
ORDER AND REASONS
Petitioner, Michael J. Scott, filed this application for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Upon review of the record and the law, the Court has determined that the record is sufficient, that no evidentiary hearing is required, and that petitioner is not entitled to relief because his federal application is untimely.
Pursuant to 28 U.S.C. § 2254(e)(2), whether to hold an evidentiary hearing is now a statutorily mandated determination. According to Section 2254(e)(2), the district court may hold an evidentiary hearing only when the petitioner has shown that either the claim relies on a new, retroactive rule of constitutional law that was previously unavailable ( 28 U.S.C. § 2254(e)(2)(A)(i)) or the claim relies on a factual basis that could not have been previously discovered through the exercise of due diligence ( 28 U.S.C. § 2254(e)(2)(A)(ii)); and the facts underlying the claim show by clear and convincing evidence that, but for the constitutional error, no reasonable jury would have convicted the petitioner ( 28 U.S.C. § 2254(e)(2)(B)).
Petitioner is a state court prisoner incarcerated at the Louisiana State Penitentiary, Angola, Louisiana. On January 23, 1996, petitioner was convicted of second degree murder in violation of La.Rev.Stat.Ann. § 14:30.1 (West 1995). On February 1, 1996, petitioner was sentenced to a term of life imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence, with credit for time served. On March 18, 1998, petitioner's conviction and sentence were affirmed by the Louisiana Fourth Circuit Court of Appeal.
State Rec., Vol. II of V, January 23, 1996, minute entry; State Rec., Vol. I of V, jury verdict form.
State Rec., Vol. II of V, February 1, 1996, minute entry. Although the minute entry is incorrectly dated February 1, 1995, the correct date is reflected on the docket master.
State v. Scoff, 709 So.2d 339 (La.App. 4th Cir. 1998); State Rec., Vol. III of V. Petitioner did not seek review of the Louisiana Fourth Circuit Court of Appeal's decision. See Rec. Doc. 6, Exhibit A.
On or after March 29, 1999, petitioner filed with the state district court an application for post-conviction relief. When the state district court failed to rule on that application, petitioner filed with the Louisiana Fourth Circuit Court of Appeal an application for a writ of mandamus. On September 8, 2000, that court denied the request for a writ of mandamus, noting, "This court has reviewed relator's application for post conviction relief and finds no merit to his claims." Petitioner then filed with the Louisiana Supreme Court an application for a writ of certiorari which was denied on August 24, 2001.
State Rec., Vol. I of V. As the state notes in its response, that post-conviction application was submitted in the names of both petitioner and Craig Scott, petitioner's co-defendant. Although only Craig Scott signed the application, the state takes the position that it serves as a valid post-conviction application for petitioner because he signed the cover letter accompanying the application. Rec. Doc. 6, p. 3.
This Court also notes that the state record does not reflect the date that the post-conviction application was actually filed. However, petitioner's cover letter accompanying the application was dated March 29, 1999. State Rec., Vol. I of V. Therefore, the application could not have been filed prior to that date. In the absence of any evidence of the actual filing date, the Court will consider March 29, 1999, as the date the state post-conviction application was filed.
In petitioner's federal application, he contends that the state post-conviction application was filed on February 14, 1999. Rec. Doc. 2, p. 5, answer to question 7(b)(iii). As the state notes in its response, the record does not support that contention. Rec. Doc. 6, p. 7. However, even if the state post-conviction application had been filed on February 14, 1999, petitioner's federal application would still be untimely.
State Rec., Vol. IV of V.
State v. Scott, No. 2000-K-1581 (La.App. 4th Cir. Sept. 8, 2000) (unpublished); State Rec., Vol. IV of V.
State Rec., Vol. V of V.
State ex rel Scott v. State, 795 So.2d 327 (La. 2001); State Rec., Vol. V of V.
On February 14, 2002, petitioner filed an application for federal habeas corpus relief In support of his federal application, petitioner claims:
Rec. Doc. 2. Petitioner signed his application for federal habeas corpus relief on February 14, 2002. That date represents the earliest date that petitioner could have presented his application to prison officials for mailing and, therefore, the earliest date that this Court could deem his habeas petition to have been filed for statute of limitations purposes. See Cooper v. Brookshire, 70 F.3d 377, 379-80 (5th Cir. 1995) (citing Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988)).
1. Petitioner was denied effective assistance of counsel prior to and during trial;
2. The state courts erred when they failed to properly review petitioner's post-conviction application; and
3. Petitioner was denied effective assistance of counsel on appeal.
The state argues that petitioner's federal application is untimely. Generally speaking, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires that a petitioner bring his Section 2254 claims within one (1) year of the date on which his conviction or sentence became final. The AEDPA's one-year statute of limitations is tolled for the period of time during which a properly filed application for state post-conviction relief or other collateral review attacking a conviction or sentence is pending in state court. See Fields v. Johnson, 159 F.3d 914 (5th Cir. 1998); 28 U.S.C. § 2244(d)(2). "`[A] properly filed application is one submitted according to the state's procedural requirements, such as the rules governing notice and the time and place of filing." Villegas v. Johnson, 184 F.3d 467, 469 (5th Cir. 1999) (quoting Lovasz v. Vaughn, 134 F.3d 146, 148 (3rd Cir. 1998)); Williams v. Cain, 217 F.3d 303 (5th Cir. 2000).
Rec. Doc. 6, pp. 5-8. The state also contends that petitioner has failed to exhaust his state court remedies. Because the Court agrees that petitioner's federal application is untimely, it need not make a determination regarding exhaustion.
28 U.S.C. § 2244(d) provides:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(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.
The Louisiana Fourth Circuit Court of Appeal affirmed petitioner's conviction and sentence on March 18, 1998. Pursuant to La.C.Cr.P. art. 922(B) (West 1998), petitioner's conviction and sentence became final on April 1, 1998, when petitioner failed to file an application for rehearing within the fourteen days allowed. However, petitioner had until April 17, 1998, to seek timely review of the intermediate appellate court's decision by filing a writ application in the Louisiana Supreme Court. Accordingly, pursuant to 28 U.S.C. § 2244(d)(1)(A), the one-year period that petitioner had to file his application for federal habeas corpus relief commenced on the later date, i.e. April 17, 1998.
La.C.Cr.P. art. 922 (West 1998) provides:
A. Within fourteen days of rendition of the judgment of the supreme court or any appellate court, in term or out, a party may apply to the appropriate court for a rehearing. The court may act upon the application at any time.
B. Ajudgment rendered by the supreme court or other appellate court becomes final when the delay for applying for a rehearing has expired and no application therefore has been made.
C. If an application for a rehearing has been made timely, a judgment of the appellate court becomes final when the application is denied.
D. If an application for a writ of review is timely filed with the supreme court, the judgment of the appellate court from which the writ of review is sought becomes final when the supreme court denies the writ.
Louisiana Supreme Court Rule X, § 5(a) provides in pertinent part: "An application seeking to review a judgment of the court of appeal after an appeal to that court . . . shall be made within thirty days of the mailing of the notice of the original judgment of the court of appeal. . . ." The notice of the Louisiana Fourth Circuit Court of Appeal's judgment was mailed to petitioner on March 18, 1998. Rec.Doc.7.
Prior to petitioner filing his state post-conviction relief application on March 29, 1999, three hundred forty-five (345) days of the one-year period had elapsed. Because the trial court failed to rule on the post-conviction application, the application remained pending and the AEDPA's one-year statute of limitations remained tolled until at least September 8, 2000, the date that the Louisiana Fourth Circuit Court of Appeal denied the application on the merits.
The state contends that petitioner's subsequent writ application to the Louisiana Supreme Court was untimely filed. If petitioner timely filed the writ application, tolling continued uninterrupted. Melancon v. Kaylo, 259 F.3d 401, 406-07 (5th Cir. 2001). However, if the writ application was untimely filed, tolling halted upon the expiration of the period during which he could have sought such review. Id. at 407. Deficiencies in the state record prevent this Court from making that determination. The rules of the Louisiana Supreme Court provide in pertinent part:
Rec. Doc. 6, pp. 7-8.
An application seeking to review a judgment of the court of appeal . . . after that court has granted relief on an application for supervisory writs . . . or after a denial of an application, shall be made within thirty days of the mailing of the notice of the original judgment of the court of appeal.
Louisiana Supreme Court Rule X, § 5(a) (emphasis added). Although the Louisiana Fourth Circuit Court of Appeal's denial is dated September 8, 2000, the state record filed with this Court contains no evidence of the date that the notice of judgment was mailed. In the absence of any evidence of the mailing date, this Court is unwilling to find that petitioner's subsequent application for a writ of certiorari was untimely filed. Accordingly, the Court assumes that it was timely filed and, pursuant to Melancon, the one-year period remained tolled until the Louisiana Supreme Court denied the writ application on August 24, 2001.
The state contends that a decision is mailed on the same date it is rendered. Rec. Doc. 6, pp. 7-8. However, the Court considers that unsubstantiated contention insufficient. Even if the normal policy is to mail decisions on the date they are rendered, the state has submitted no evidence (such as a mailing receipt or even a contemporaneous notation in the court file) that the state in this case complied with the policy.
Although the United States Fifth Circuit Court of Appeal has not directly addressed the issue of when the Louisiana Supreme Court's denial of an application for state post-conviction relief is considered "final" for the purpose of calculating a tolling period in a federal habeas corpus proceeding, it appears that the general practice is to consider a writ denial final as of the date of the denial. See Melancon v. Kaylo, 259 F.3d 401, 404 (51h Cir. 2001) (tolling period ended on February 5, 1999, the date of the writ denial); Hall v. Cain, 216 F.3d 518, 520 (5th Cir. 2000) (post-conviction application ceased to be pending on November 22, 1996, the date of the writ denial); Chester v. Cain, 2001 WL 1231660, at *4 (E.D. La. Oct. 15, 2001) (tolling period ended on January 12, 2001, the date of the writ denial); Walker v. Cain, 2001 WL 1005943, at *2 (E.D. La. Aug. 30, 2001) (tolling period ended on October 27, 2000, the date of the writ denial). This would appear to comport with the rules of the Louisiana Supreme Court which, while generally allowing fourteen days for filing for a rehearing, indicate that a rehearing application "will not be considered when the court has merely granted or denied an application for a writ of certiorari or a remedial or other supervisory writ." La. Sup.Ct. Rules, Rule IX, §§ 1, 6. However, petitioner's application for federal habeas corpus relief would still be untimely even if his state post-conviction application were considered pending (and his tolling period extended) during the additional fourteen-day rehearing period.
This Court further notes that petitioner's state post-conviction application cannot be considered "pending" for tolling purposes during the period within which petitioner could have sought a writ of certiorari from the United States Supreme Court. "[U]nlike § 2244(d)(1)(A), which takes into account the time for filing a certiorari petition in determining the finality of a conviction on direct review, § 2244(d)(2) contains no such provision. Rather, § 2244(d)(2) only tolls the period for a properly filed petition for "State post-conviction or other collateral review.' . . . [A] petition for a writ of certiorari to the Supreme Court is not an application for `State' review that would toll the limitations period." Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999).
Once the statute of limitations resumed running on August 25, 2001, petitioner had only twenty (20) days remaining of the one-year period. Accordingly, he had until September 13, 2001, to either file his federal habeas corpus application or toll the running of the one-year period with another state court application for post-conviction relief or other collateral review. From August 25, 2001, to September 13, 2001, petitioner had no such application pending before Louisiana state courts which would toll the AEDPA's statute of limitations. Petitioner's federal application was not filed until February 14, 2002, and it was, therefore, untimely filed.
The state record filed with this Court contains a copy of a post-conviction application filed in the state district court on May 3, 2001, in the names of both petitioner and co-defendant Craig Scott, as well as subsequent appellate court records relating to that application. However, unlike with the prior joint post-conviction application discussed at note 5, supra, there is no indication that the second application, which was signed only by Craig Scott, was ever adopted in any fashion by petitioner as his own or that it was ever treated by the state courts as relating to petitioner. In fact, the opposite is true. In his federal application, petitioner states that his only state post-conviction application was the one filed in 1999. Rec. Doc. 2, pp. 5-6, answers to questions 7(b)-(c). Accordingly, the 2001 post-conviction application was not related to petitioner and it need not be considered for tolling purposes.
The Fifth Circuit has held that the AEDPA's one-year statute of limitations can, in rare and exceptional circumstances, be equitably tolled. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). However, "[e]quitable tolling 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) (quotation marks omitted). This Court knows of no reason which would support equitable tolling of the statute of limitations.
Petitioner states in his federal application that he did not receive the Louisiana Supreme Court's decision of August 24, 2001, until October 30, 2001. Rec. Doc. 2, p. 4, answer to question 6(c)(ii). The Court notes that in some instances equitable tolling is warranted when a petitioner has failed to receive notice of an adverse state court ruling. See Phillips v. Donnelly, 216 F.3d 508 (5th Cir.), modified on partial rehearing on other grounds, 223 F.3d 797 (5th Cir. 2000). However, even if petitioner were entitled to equitable tolling for the period of August 25, 2001, through October 30, 2001, his federal application would still be untimely.
Accordingly, petitioner's application for federal habeas corpus relief is DENIED.