Cleveland Troy Bias La. Doc v. Wendom
| Decision Date | 30 June 2015 |
| Docket Number | CIVIL ACTION NO. 6:15-cv-0630 SECTION P |
| Parties | CLEVELAND TROY BIAS LA. DOC #247758 v. WARDEN JEFF WENDOM |
| Court | U.S. District Court — Western District of Louisiana |
Pro se petitioner Cleveland Troy Bias, an inmate in the custody of the Louisiana Department of Corrections filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on March 9, 2015.1 Petitioner attacks his 2007 conviction for distribution of cocaine and his subsequent adjudication as an habitual offender, for which he was ultimately sentenced to fifteen years imprisonment by the Fifteenth Judicial District Court for Acadia Parish, Louisiana. This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of the Court.
For the reasons which follow, IT IS RECOMMENDED that this petition for habeas corpus be DENIED AND DISMISSED WITH PREJUDICE because petitioner's claims are barred by the one-year limitation period codified at 28 U.S.C. § 2244(d) and alternatively, because petitioner's claims are procedurally defaulted.
Petitioner was charged with distribution of cocaine in case number 68872. On September 26, 2007, he was found guilty as charged. On March 3, 2008, petitioner was sentenced to serve 10 years imprisonment. On January 7, 2008, the State filed an habitual offender bill in case number 72750. On May 13, 2009, petitioner was adjudicated an habitual offender. Accordingly, petitioner's original sentence was vacated and petitioner was re-sentenced to serve 15 years imprisonment. [Doc. 1, ¶1-6; 1-2, p. 3; Doc. 1-3, p. 6 (Court Minutes)].
Prior to being adjudicated an habitual offender, on August 4, 2008 petitioner filed an application for post-conviction relief in the District Court, alleging that his counsel was ineffective for failing to file a motion for an appeal. On January 7, 2009, a hearing on the application for post-conviction relief was held, at the conclusion of which, relief was denied. On March 26, 2009, petitioner filed an application for writs in the Third Circuit Court of Appeals. This application was denied as deficient on May 26, 2009. State of Louisiana v. Cleveland Troy Bias, 09-371 (La. App. 3 Cir. 5/26/2009).
Petitioner filed another writ application in the Third Circuit on August 25, 2009. That writ application was denied on November 5, 2009 because petitioner had not provided a copy of the January 7, 2009 evidentiary hearing transcript. State of Louisiana v. Cleveland Troy Bias, 09-1023 (La. App. 3 Cir. 11/5/2009). [Doc. 1-2, pp. 3-4].
On March 22, 2010, petitioner filed a motion for out-of-time appeal in the District Court. Thereafter, he filed a petition for mandamus in the Third Circuit seeking a ruling on his motion. The Third Circuit denied mandamus relief on September 10, 2010 because the Acadia Parish Clerk of Court claimed that the Court had not received petitioner's motion. State of Louisiana v. Cleveland Troy Bias, 10-923 (La. App. 3 Cir. 9/10/2010). [Doc. 1-2, p. 4]
On September 13, 2010, an evidentiary hearing on petitioner's motion for out-of-time appeal was held. Thereafter, for reasons assigned on September 16, 2010, relief was denied. [Doc. 1-3, p. 7]. On October 19, 2010 petitioner filed a writ application in the Third Circuit. That application was denied on December 6, 2010 because petitioner failed to provide a copy of the evidentiary hearing transcript or a copy of his Motion for an out-of-time Appeal. State of Louisiana v. Cleveland Troy Bias, 10-1264 (La. App. 3 Cir. 12/6/2010). [Doc. 1-2, p. 4].
On December 16, 2010, petitioner filed another writ application in the Third Circuit, presumably with the missing documentation. On January 23, 2012, the Third Circuit granted writs and ordered the District Court to grant petitioner's motion for out-of-time appeal. State of Louisiana v. Cleveland Troy Bias, 10-1510 (La. App. 3 Cir. 1/23/2012). [Doc. 1-3, p. 8]. The District Court complied with that Order on January 27, 2012 by granting separate out-of-time appeals with respect to petitioner's conviction in case number 68872 and petitioner's habitual offender adjudication and multiple offender sentence in case number 72750.
On December 5, 2012, the Louisiana Third Circuit Court of Appeals affirmed petitioner's conviction, habitual offender adjudication, and sentence in separate Orders appeals. [Doc. 1-2, p. 5; 1-3, p. 9 and 10]. State of Louisiana v. Cleveland Troy Bias, 2012-0609 (La. App. 3 Cir. 12/5/2012), 103 So.3d 744 (Table) 2012 WL 6030889 (conviction); and State of Louisiana v. Cleveland Troy Bias, 2012-0610 (La. App. 3 Cir. 12/5/2012), 103 So.3d 744 (Table); 2012 WL 6028911.
Sometime in April, 2013,2 petitioner filed an application for post-conviction relief in the trial court raising claims of (1) ineffective assistance of counsel; (2) errors with respect to a photographic lineup; and (3) the constitutionality of the habitual offender adjudication. On June 26, 2013, the District Court denied the application. In so doing, the Court held that petitioner's petitioner's claims regarding the photographic lineup and his habitual offender adjudication were defaulted as they had previously been litigated on direct appeal. [Doc. 1-3, p. 12]. On July 29, 2013, petitioner filed an application for writ of review in the Third Circuit Court of Appeals. The Third Circuit denied writs on November 19, 2013 finding that "[t]he trial court did not err in denying [petitioner's] application for post conviction relief." State of Louisiana v. Cleveland Troy Bias, 13-857, (La. App. 3 Cir. 11/19/2013. [Doc. 1-3, p. 11]. Notice of Judgment was mailed to petitioner on November 19, 2013. [Doc. 1-3, p. 11].
On April 7, 2014, petitioner filed an application for writ of review in the Louisiana Supreme Court. On January 16, 2015, the Louisiana Supreme Court denied review without comment. State of Louisiana ex rel. Cleveland Troy Bias v. State of Louisiana, 2014-0746 (La. 1/16/2015), 157 So.3d 1123. [Doc. 1-3, p. 13]. Petitioner suggests that in this writ application he sought review of the Third Circuit's decision on his post-conviction application under docket number 13-857; however, the decision of the Louisiana Supreme Court reveals that this writ application sought review of the Third Circuit's decisions on petitioner's direct appeals under docket numbers 2012-0609 and 2012-0610. [Doc. 1-2, p. 6].
Petitioner filed the instant petition on March 9, 2015.3 He argues the following claims for relief: (1) insufficiency of the evidence; (2) ineffective assistance of trial counsel; (3) denial of an evidentiary hearing on petitioner's post-conviction claim of ineffective assistance of counsel; and, (4) failure to advise petitioner of his rights with regard to the habitual offender proceeding.
Petitioner has no other petitions or appeals pending in any court with respect to the challenged conviction and adjudication. [Doc. 1, ¶15].
1. Federal One-Year Limitation Period
Title 28 U.S.C. § 2244(d)(1)(A) provides a one-year statute of limitations for the filing of federal petitions seeking habeas corpus relief by persons, such as petitioner, who are in custody pursuant to the judgment of a State court. This limitation period generally 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).4
The statutory tolling provision of 28 U.S.C. § 2244(d)(2) provides that the time during which a properly filed application for post-conviction relief was pending in state court is not counted toward the limitation period. Ott v. Johnson, 192 F.3d 510, 512 (5thCir. 1999); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998); 28 U.S.C. § 2244(d)(2). However, any lapse of time before the proper filing of an application for post-conviction relief in state court is counted against the one-year limitation period (see Villegas v. Johnson, 184 F.3d 467, 472 (5th Cir. 1999) citing Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir.1998)) and, of course, the limitations period is tolled only for as long as the state application remains "properly filed" and pending in the state's courts. See Johnson v.Quarterman, 483 F.3d 278, 285 (5th Cir. 2007). Federal courts may raise the one-year time limitation sua sponte. Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).
Petitioner eventually directly appealed to the Third Circuit Court of Appeals, which affirmed petitioner's conviction, multiple offender adjudication, and his enhanced sentence on December 5, 2012; notice of judgment was mailed that same date. [See Doc. 1-3, pp. 9 and 10] State of Louisiana v. Cleveland Troy Bias, 2012-0609 (La. App. 3 Cir. 12/5/2012), 103 So.3d 744 (Table) 2012 WL 6030889; State of Louisiana v. Cleveland Troy Bias, 2012-0610 (La. App. 3 Cir. 12/5/2012), 103 So.3d 744 (Table); 2012 WL 6028911. Therefore, under Louisiana Supreme Court Rule X, §5(a), petitioner had 30 days following the Third Circuit's mailing of its Notice of Judgment, or until January 5, 2013, to apply for further direct review in the Louisiana Supreme Court.5
The record in this case clearly establishes that petitioner did not seek further direct review in the Louisiana Supreme Court until, at the earliest, over one year later on April 7, 2014. Accordingly, for purposes of the federal one-year limitation period, petitioner's judgment of conviction "became final by . . . expiration of the time for seeking [further direct] review" under 28 U.S.C. §2244(d)(1)(A) on January 5, 2013, when the 30 day period set forth in Louisiana Supreme Court Rule X, §5(a) expired. See Butler v. Cain, 533 F.3d 314, 317-318 (5th Cir. 2008).
Because petitioner's judgment of conviction became final for AEDPA purposes on January 5, 2013, petitioner had one year, or until January 5, 2014 to file his federal ...
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