Arita v. Cain, CIVIL ACTION NO. 11-636

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Writing for the CourtDANIEL E. KNOWLES, III
Decision Date20 August 2011
Docket NumberCIVIL ACTION NO. 11-636




Date: August 20, 2011


This matter was referred to this United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings of fact 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 in the United States District Courts. Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH PREJUDICE.

Petitioner, Theodore N. Arita, is a state prisoner incarcerated at the Louisiana State Penitentiary, Angola, Louisiana. On April 24, 2003, he was convicted under Louisiana law of attempted armed robbery.1 On July 24, 2003, he pleaded guilty to being a multiple offender and was sentenced as such to a term of thirty years imprisonment without benefit of probation, parole, or

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suspension of sentence.2 On March 1, 2005, the Louisiana Fifth Circuit Court of Appeal affirmed that conviction and sentence.3 The Louisiana Supreme Court then denied petitioner's related writ application on November 29, 2005.4

On November 29, 2007, petitioner, through counsel, filed an application for post-conviction relief in the state district court.5 That application was denied on February 12, 2008.6 He was then likewise denied post-conviction relief by the Louisiana Fifth Circuit Court of Appeal7 and the Louisiana Supreme Court.8

On March 15, 2011, petitioner filed the instant federal application for habeas corpus relief.9 In support of his application, he asserts the following claims:

1. The prosecutor engaged in misconduct;

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2. Petitioner was denied the right to confront the technician who lifted fingerprints from the crime scene;
3. Petitioner received ineffective assistance of counsel; and
4. The trial court erred in denying petitioner's motion to strike a juror for cause.10


The state contends that petitioner's federal application is untimely.11 The state is correct.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") established a one-year statute of limitations for the filing of federal habeas corpus applications. The method for calculating a petitioner's one-year period is set forth in 28 U.S.C. § 2244(d), which 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;

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(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.

Clearly, Subsections B and D are inapplicable here, in that petitioner does not claim either the existence of a state-created impediment to filing or a newly-discovered factual predicate for his claims.

Petitioner does, however, appear to invoke Subsection C by arguing that one of his claims is based on Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).12 However, because Melendez-Diaz is not retroactively applicable to cases on collateral review, § 2244(d)(1)(C) is inapplicable. See, e.g., Walker v. Johnson, No. 2:10CV548, 2011 WL 2119260, at *4 (E.D. Va. Apr. 19, 2011), adopted, 2011 WL 2119141 (E.D. Va. May 27, 2011).

Accordingly, petitioner is left with only Subsection A. As noted, under that provision, a petitioner must bring his Section 2254 claims within one (1) year of the date on which his underlying criminal judgment became final upon the expiration of time for seeking direct review. 28 U.S.C. § 2244(d)(1)(A). In the instant case, the Louisiana Supreme Court denied petitioner's writ application on direct review on November 29, 2005. Therefore, his criminal judgment became "final" no later than February 27, 2006, when his period expired for seeking a writ of certiorari from the United States Supreme Court. See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999); Chester v. Cain, Civ. Action No. 01-1958, 2001 WL

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1231660, at *3-4 (E.D. La. Oct. 15, 2001); see also U.S. Sup. Ct. R. 13(1). Accordingly, his period for seeking federal habeas corpus relief commenced on that date and expired on February 27, 2007, unless that deadline was extended through tolling.

The Court first considers statutory tolling. The AEDPA provides that the 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. 28 U.S.C. § 2244(d)(2). However, petitioner had no such state applications pending at any time during the one-year limitations period.13 Therefore, he clearly is not entitled to statutory tolling.

The AEDPA's limitations period is also subject to equitable tolling. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). That said, "a petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Id. at 2562 (internal quotation marks omitted); see also Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998) (holding that the AEDPA's statute of limitations can be equitably tolled "in rare and exceptional circumstances"). A petitioner bears the burden of proof to establish entitlement to equitable tolling. Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002).

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Petitioner argues that such an "extraordinary circumstance" exists here due to his lawyer's failings. Petitioner alleges:

Petitioner's family specifically hired Attorney James Williams, who signed a contractual agreement to file any, and all appeal proceedings through State, and Federal Courts. Including any probation, parole hearings in the future. This was also Attorney throughout trial, and knew all the details of petitioner's case. Failed to provide petitioner with any relevant paper work surrounding his case, even after numerous request. During James Williams employment, and appeal process, he and assistant "Mike" continuesly deceived petitioner, and his family into beleiving that everything was okay, and Petitioner was in no danger of loseing Any time limitations. Continuesly urgeing us to be calm, and patient with the process, and assured us that he had everything under control.14

To determine whether equitable tolling is warranted, a federal court must first determine whether counsel's conduct constituted mere negligence or, instead, deception or other egregious misconduct.

It has long been held that an attorney's mere negligence does not warrant equitable tolling. For example, in Cousin v. Lensing, 310 F.3d 843 (5th Cir. 2002), the United States Fifth Circuit Court of Appeals stated:

Many courts have considered the question whether attorney error constitutes "rare and exceptional circumstances" and have held that it does not. [FN4] Additional support for the proposition that

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attorney error does not trigger equitable tolling is the longstanding rule that prisoners are not entitled to counsel during habeas proceedings and thus cannot state a claim for ineffective assistance during those proceedings. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
[FN4] See United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (holding that the death of the attorney's father two weeks before filing deadline did not constitute extraordinary circumstance for equitable tolling purposes); Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) (holding that attorney's confusion over applicability of § 2244(d)(1) did not justify equitable tolling), cert. denied, 534 U.S. 863, 122 S.Ct. 145, 151 L.Ed.2d 97 (2001); Harris v. Hutchinson, 209 F.3d 325, 330-31 (4th Cir. 2000) (holding that attorney's mistaken interpretation of § 2244(d) limitation provision did not justify equitable tolling); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999) (holding that attorney's miscalculation of limitations period was not valid basis for equitable tolling); Sandvik v. United States, 177 F.3d 1269, 1272 (11th Cir. 1999) (holding that untimeliness resulting from attorney's use of ordinary mail did not justify equitable tolling).

Cousin, 310 F.3d at 848 & n. 4. The Fifth Circuit then held: "[W]e join the other circuits that have considered this issue and hold that mere attorney error or neglect is not an...

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