Arita v. Cain
Decision Date | 20 August 2011 |
Docket Number | CIVIL ACTION NO. 11-636 |
Parties | THEODORE N. ARITA v. BURL CAIN (WARDEN) |
Court | U.S. District Court — Eastern District of Louisiana |
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, orsuspension 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:
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:
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 WL1231660, 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) ( ). A petitioner bears the burden of proof to establish entitlement to equitable tolling. Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002).
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:
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 extraordinary circumstance such that equitable tolling is justified." Id. at 849. In a subsequent case, the Fifth Circuit noted: "If there was ever any doubt that an attorney's error or neglect does not warrant equitable tolling, our recent decision in Cousin ... erased it United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002). The Court concisely stated: "Ineffective assistance of counsel is irrelevant to the tolling decision." Id. (emphasis added). While error or neglect may warrantprofessional discipline of the attorney, it simply does not justify equitable tolling of the AEDPA's statute of limitations. Id. at 800.
As recently as 2007, the ...
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