Opinion
Civil Action No. 04-1642 SECTION "K" (6).
June 3, 2005
ORDER AND REASONS
Before the Court is Petitioner Ignatius Weaver's timely objection to the Magistrate's Report and Recommendation of January 11, 2005. After considering the Petition under 28 U.S.C. § 2254 (2005) for Writ of Habeas Corpus by a Person in State Custody, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, and plaintiff's Objections received on February 3, 2005 and having conducted a de novo review of those portions of the Report and Recommendations to which objections are made as required by 28 U.S.C. § 636(b)(1), the Court finds merit in Weaver's Objections and hereby recommits this matter to the Magistrate for further consideration. I. STANDARD OF REVIEW
(Rec. Doc. No. 7).
(Rec. Doc. No. 1).
(Rec. Doc. No. 8).
Magistrate judges are empowered by statute to preside over certain pretrial matters upon appointment by a district judge. 28 U.S.C. § 636(b)(1)(A) (2005); see also Rules Governing § 2254 Cases, Rule 10. A district court evaluating a magistrate judge's recommendation may adopt those portions of the recommendation to which no specific objection is made, as long as those sections are not clearly erroneous. See id.; Fed.R.Civ.P. 72(b). However, where a party makes "specific, written objections" within 10 days after being served with a copy of the magistrate's recommendations, the district court must undertake de novo review of those contested aspects of the report. 28 U.S.C. § 636(b)(1) (©); see also Fed.R.Civ.P. 72(b). The district judge may then "accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Id. II. FACTS AND PROCEDURAL HISTORY
The issue before the Court is a question of timeliness; thus, the facts pertinent to its resolution consist primarily of a series of dates.
The dates provided are taken from the Magistrate's Report and Recommendation, (Rec. Doc. No. 7), except where otherwise noted.
On March 22, 1999, petitioner Weaver was convicted of armed robbery in Orleans Parish Criminal District Court. (Rec. Doc. No. 7, at 1-2). Thereafter, on June 21, 1999, Weaver was adjudicated to be a second felony offender and sentenced to serve forty-nine and one half (49½) years of incarceration pursuant to La.R.S. 15:529.1. Weaver directly appealed his conviction to the Louisiana Fourth Circuit Court of Appeals on October 28, 1999. The Fourth Circuit affirmed on September 27, 2000. Thereafter, petitioner filed an application for a writ of certiorari in the Louisiana Supreme Court on October 27, 2000, which the Court denied on October 26, 2001. The latter date proves crucial in calculating the proper federal limitation period in this matter.
Next, petitioner filed his application for post-conviction relief ("PCR application") in state court on December 23, 2002. On January 10, 2003, the state district court denied petitioner's PCR application. Weaver filed a writ of review with the Louisiana Fourth Circuit on March 5, 2003, which was denied April 8, 2003.
Petitioner's Objection centers on the events that followed. After the Louisiana Fourth Circuit's April 8th denial, petitioner had thirty (30) days to "file" a writ application with the Louisiana Supreme Court. Louisiana Supreme Court Rule X § 5(a). Twenty-nine (29) days later, on May 7, 2003, petitioner submitted his application for writ of review to prison authorities for mailing, as evidenced by the mailing receipt attached to petitioner's objection. (Rec. Doc. No. 8, attachment). On May 22, 2003, forty-three (43) days after the Louisiana Fourth Circuit's denial, petitioner's writ application was received by the Louisiana Supreme Court.
A receipt, this Court notes, which first surfaced with the petitioner's Objections, making it unavailable to the Magistrate prior to issuing his report and recommendation.
Such facts implicate a traditional mailbox rule problem. Thus, a brief synopsis of legal outcomes is in order, although a more detailed analysis will follow. Namely, if "filing" occurred upon delivery to prison officials, then Weaver would have remained timely in his pursuit of state post-conviction relief and therefore would have been timely in filing his federal habeas petition with this Court. See 28 U.S.C. § 2244(d) (2005). If, however, "filing" occurred upon receipt of the writ application by the Louisiana Supreme Court, petitioner's state-post conviction proceeding lost its "properly filed" status, thus making the federal petition (or "§ 2254 petition") untimely as well. Id. In the latter case, only equitable tolling could salvage Weaver's § 2254 petition. Coleman v. Johnson, 184 F.3d 398 (5th Cir. 1999).
Generally, a federal court need only look to the state court's opinion to determine whether that court considered the PCR application timely, and therefore "properly filed" for § 2244(d)(2) purposes. In this case, unfortunately, the Louisiana Supreme Court's opinion is of no guidance. See Weaver v. Louisiana, 03-1436 (La. 4/23/04), 870 So. 2d 292. In a one-word opinion, dated April 23, 2004, that court denied petitioner's PCR application. Id. On April 27, 2004 — four days later — petitioner filed the § 2254 petition that is currently before this Court. III. ANALYSIS
The magistrate correctly noted that under the "mailbox rule" announced in Cooper v. Brookshire, the date of signature is considered the date of filing. 70 F.3d 377, 379 (5th Cir. 1995); (Rec. Doc. No. 7, at 3 n. 9) (citations omitted).
The Magistrate recommended that the Court deny Weaver's § 2254 petition as untimely. In response to the Report and Recommendation, petitioner seeks the benefit of the Houston rule, a "mailbox" rule applicable to the filings of pro se prisoners. See, e.g., Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); Tatum v. Lynn, 93-1559 (La.App. 1 Cir. 5/20/94), 637 So. 2d 796. To address petitioner's Objection, a review of both federal and state law is in order.
A. THE FEDERAL TIMELINE FOR § 2254 HABEAS REVIEW
Petitioner filed a petition for habeas corpus relief on April 27, 2004, which the magistrate judge found to be untimely under 28 U.S.C. § 2244(d). (Rec. Doc. No. 7). Section 2244(d)(1) allocates a one-year limitation period within which a § 2254 habeas petition must be filed. As applied in this matter, the limitation period commenced on January 24, 2002 — 90 days after the Louisiana Supreme Court's denial of Weaver's writ application (October 26, 2001) when Weaver could no longer seek review with the United States Supreme Court. (Rec. Doc. No. No. 7, at 5) ( citing Sup. Ct. R. 13(1)); see also 28 U.S.C. § 2244(d)(1) (establishing the events commencing the one year period of limitation). Therefore, absent a suspension of the one-year period, Weaver's deadline to file for § 2254 relief expired on January 24, 2003.
As amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996) (effective April 24, 1996).
However, 28 U.S.C. § 2244(d)(2) provides such a suspensive period. It explains:
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.Id. (emphasis added). As applied in the present case, Weaver's § 2244(d)(1) limitation period (or "limitation period") began to run on January 24, 2002. From this date until December 22, 2002, Weaver took no action. Then, on December 23, 2002, he filed a post-conviction relief application in state court. At this point, 332 days of the § 2244(d)(1) period had expired, and 33 days remained for petitioner to seek § 2254 relief in federal court. Upon filing, pursuant to § 2244(d)(2), Weaver's one-year period paused and would remain paused as long as his "properly filed application for State post-conviction . . . review . . . [was] pending." Id.
"Properly filed" status includes the requirement that the petitioner remain timely in any state post-conviction proceeding. Williams v. Cain, 217 F.3d 303, 308 (5th Cir. 2000) (holding that untimeliness removes the § 2244(d)(2) suspensive condition because the State post-conviction application is no longer "properly filed"). It is undisputed that petitioner remained timely is his PCR proceeding through April 8, 2003, the date the Louisiana Fourth Circuit dismissed his application for review.
To reiterate, the dispute in this matter surrounds Weaver's writ application to the Louisiana Supreme Court. Following denial by the Louisiana Fourth Circuit, petitioner had thirty (30) days to file a writ application with the Louisiana Supreme Court. Louisiana Supreme Court Rule X § 5(a). Twenty-nine (29) days later, on May 7, 2003, petitioner submitted his writ application to prison authorities for mailing, as evidenced by the mailing receipt. (Rec. Doc. No. 8, attachment). On May 22, 2003, forty-three (43) days after the Louisiana Fourth Circuit's denial, petitioner's writ application was received by the Louisiana Supreme Court.
In the Report and Recommendation, the magistrate concluded, without any evidence to the contrary, that Weaver failed to file his writ application within the thirty-day window provided by Louisiana Supreme Court Rule X § 5(a). Therefore, when this period expired on May 8, 2003, the § 2244(d)(2) suspensive condition ceased, and Weaver's federal limitation period for filing a § 2254 habeas petition started to run again. The remaining 33 days of the § 2244(d)(1) period then expired in June of 2003, while Weaver's untimely petition was pending with the Louisiana Supreme Court.
In his Objection, the petitioner contends that his writ application to the Louisiana Supreme Court was timely filed. (Rec. Doc. No. 8, at 2-3). Therefore, the § 2244(d)(1) limitation period remained suspended until April 23, 2004 when the Louisiana Supreme Court denied the writ application. At this point, Weaver contends that the 33 days remaining in this § 2244(d)(1) limitation period started again. Thus, when he filed his § 2254 habeas petition with this Court four days later on April 27, 2004, he asserts that he was well within his § 2244(d)(1) limitation period. The basis of the contention is a jurisprudential rule, enunciated by the United States Supreme Court in Houston v. Lack, 487 U.S. 266 (1988), and thereafter incorporated into Louisiana's jurisprudence, see, e.g., Johnson v. Whitley, 92-2689 (La. 1/6/95), 648 So. 2d 909.
B. THE HOUSTON RULE — A MAILBOX RULE FOR PRO SE PRISONERS
In Houston, supra, the United States Supreme Court held that a notice of appeal, under Fed.R.App.P. 4(a)(1), submitted by a pro se prisoner is considered "filed" upon delivery to prison authorities for mailing, not upon receipt by a court. Id. On the facts of that case, the Houston rule initially was limited to notices of appeal, but over time, federal courts expanded the rule to many other kinds of court filings. See Coleman, 184 F.3d at 401 (listing other federal filings to which the rule applies). Nevertheless, on facts similar to this case in Coleman v. Johnson, supra, the Fifth Circuit declined to utilize the Houston rule. Id. The Fifth Circuit explained:
[Petitioner] Coleman asks us to extend Houston far beyond [previous] holdings: He asserts that, in the context of addressing whether the pendency of a state postconviction application has tolled the one-year limitations period of § 2244(d)(2), a federal district court should apply the "mailbox rule" to filing of postconviction applications in state court.Id. at 401-02 (emphasis added). In the present case, however, the Coleman decision is distinguishable. Here, the Court need not "extend" Houston by imposing its rule upon a state PCR proceeding. Rather, this Court is called upon to recognize that state courts are at liberty to adopt their own filing requirements, and in the present context, Louisiana has chosen to adopt the Houston rule. See Johnson v. Whitley, 648 So. 2d 909 (La. 1/6/95); Hensley v. Louisiana, 03-1691, (La. 6/4/04), 876 So.2d 78; Tatum v. Lynn, 93-1559 (La.App. 1 Cir. 5/20/94), 637 So. 2d 796. Ultimately, the Coleman decision was concerned with the imposition of a federal filing rule upon a sovereign state court. In the present case, to ignore the Houston rule would be to impose a federal rule upon a state court proceeding, the outcome sought to be avoided in Coleman.
In recognizing that Louisiana courts impose the Houston rule upon themselves, this Court now can characterize the Louisiana Supreme Court's one-word denial of Weaver's writ application, dated April 24, 2004. Since Weaver "filed" his writ application on May 7, 2003 — one day prior to the deadline of Louisiana Supreme Court Rule X § 5(a) — by delivering it prison officials, this Court must infer that the one-word denial was on the merits. See Chavis v. LeMarque, 382 F.3d 921, 926 (9th Cir. 2004) (making a similar inference but without further inspection into state law).
The Court recognizes, however, that it is simply making an inference based upon Louisiana law. Had the Louisiana Supreme Court denied the application as untimely, the Houston rule notwithstanding, this Court would have no authority to conclude otherwise for § 2244(d)(2) purposes. See generally Coleman, 184 F.3d 398.
Therefore, because the denial was on the merits, this Court concludes that Weaver's state PCR applications were "properly filed" and "pending" from December 23, 2002 until April 23, 2003. 28 U.S.C. § 2244(d)(2). Accordingly, the § 2244(d)(2) suspensive condition or tolling provision remained in effect until April 23, 2003. On that date, the 32 days remaining in Weaver's § 2244(d)(1) limitation period commenced again, making his § 2254 petition timely when filed four days later on April 27, 2004.
The Court notes that as applied in this matter the strict application of Coleman produces a counterintuitive outcome. This is due to the fact that Louisiana law has also adopted the Houston rule in the pro se prisoner context on its own accord. See Johnson v. Whitley, 648 So. 2d 909 (La. 1/6/95); Hensley v. Louisiana, 03-1691, (La. 6/4/04), 876 So. 2d 78; Tatum v. Lynn, 93-1559 (La.App. 1 Cir. 5/20/94), 637 So. 2d 796. To illustrate, if this Court were to apply the Houston rule as a matter of federal law, the result is that Weaver's writ application would be considered timely. But, if this Court were to apply Louisiana's own law because it governed the post-conviction proceeding, the same result occurs, as federal and state law are identical on this point. Yet, following Coleman, this Court applies neither the federal rule nor the state rule, and the timeliness of Weaver's § 2254 habeas petition would be considered under the principles of equitable tolling. Coleman, 184 F.3d at 402. Outcomes such as this have prompted other federal circuits to revisit the issue in Coleman and arrive a different results. See Fernandez v. Artuz, ___ F.3d ___, 2005 WL 623141 (2d Cir. 2005) (providing a listing of the positions of various circuits and the rationales underlying those positions).
Accordingly, for the reasons stated herein,
It is ORDERED that this matter is RECOMMITTED to the Magistrate Judge for further consideration.