Dean v. Vannoy
| Decision Date | 27 April 2022 |
| Docket Number | Civil Action 21-1482 |
| Parties | NORMAN J. DEAN v. DARRYL VANNOY, WARDEN |
| Court | U.S. District Court — Eastern District of Louisiana |
SECTION “M” (1)
REPORT AND RECOMMENDATION
Petitioner Norman J. Dean, a Louisiana state prisoner, filed this federal application seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. For the following reasons, it is recommended that the application be DISMISSED WITH PREJUDICE.
Petitioner was charged with simple burglary of an inhabited dwelling under Louisiana law, [1]and he pleaded not guilty and not guilty by reason of insanity.[2] After he was convicted of the charged offense in a bench trial, [3] he was found to be a third offender and sentenced as such to a term of life imprisonment without benefit of parole, probation, or suspension of sentence.[4] The Louisiana Fifth Circuit Court of Appeal affirmed his conviction and sentence on April 9, 2014 [5] and the Louisiana Supreme Court then denied his related writ application on November 26, 2014.[6] On October 26, 2015, petitioner filed an application for post-conviction relief with the state district court.[7] That application was denied on February 24, 2016.[8] His related writ applications were then likewise denied by the Louisiana Fifth Circuit Court of Appeal on May 20, 2016, [9] and the Louisiana Supreme Court on October 16, 2017.[10]
On or after December 19, 2018, petitioner filed with the state district court a “Motion to Correct an Illegal [sic] Imposed Habitual Offender Sentence.”[11] That motion was denied on January 9, 2019.[12]
On or after August 2, 2021, petitioner then filed the instant federal application.[13] The state filed a response arguing that the application is untimely, [14] and petitioner filed a reply.[15] For the following reasons, the application is indeed untimely.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) includes a statute of limitations for petitioners seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Specifically, the AEDPA provides:
28 U.S.C. § 2244(d)(1).
Because petitioner does not allege the existence of a state-created impediment, a newly recognized constitutional right, or a newly discovered factual predicate, Subsections B, C, and D are inapplicable in the instant case. Accordingly, Subsection A controls, and so his federal limitations period commenced when his state court judgment became final.
With respect to determining that date of finality, the United States Fifth Circuit Court of Appeals has explained:
The statute of limitations for bringing a federal habeas petition challenging a state conviction begins to run on “the date on which the [state] 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). When a habeas petitioner has pursued relief on direct appeal through his state's highest court, his conviction becomes final ninety days after the highest court's judgment is entered, upon the expiration of time for filing an application for writ of certiorari with the United States Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003).
Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008).
Therefore, petitioner's state criminal judgment became final for federal purposes on February 24, 2015, i.e. ninety days after the Louisiana Supreme Court denied his direct-review writ application on November 26, 2014.[16] Accordingly, in order to be timely, this federal application had to be filed within one year of that date, unless that deadline was extended through tolling.
The Court first considers statutory tolling. Regarding the limitations period set forth in § 2244(d)(1), federal law provides: “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.” 28 U.S.C. § 2244(d)(2). That “tolling provision applies only to those state post-conviction filings that seek reexamination of the relevant state-court conviction or sentence.” Wall v. Kholi, 582 F.3d 147, 151 (1st Cir. 2009) (emphasis added), aff'd, 562 U.S. 545, 553 (2011) ( . See Brian R. Means, Federal Habeas Manual § 9A:74 (May 2021 Update) (“[A] state court application that does not seek judicial review of a judgment or provide the state court with authority to order relief from a judgment generally will not toll the limitations period.”).
After two hundred forty-three (243) days of his one-year period elapsed, petitioner first tolled the federal limitations period by filing a post-conviction application with the state district court on October 26, 2015.[17] Although that application was denied by the district court, [18] it remained “pending” for § 2244(d)(2) purposes for the duration of the post-conviction proceedings, so long as petitioner continued to seek review at the higher levels of the state court system in a timely manner. Grillette v. Warden, Winn Correctional Center, 372 F.3d 765, 769-71 (5th Cir. 2004). Here, the state does not argue that petitioner's related writ applications were untimely filed, and, in fact, concedes that statutory tolling continued until the Louisiana Supreme Court denied post-conviction relief on October 16, 2017.[19]
Once the limitations period resumed running at that point, petitioner had one hundred twenty-two (122) days remaining. Accordingly, he had only until February 15, 2018, either to again toll the limitations period or to file his federal application.
Petitioner had no other applications pending before the state courts at any time on or before February 15, 2018.[20] Therefore, he clearly is not entitled to further statutory tolling.
The Court next considers equitable tolling. The United States Supreme Court has expressly held that the AEDPA's statute of limitations is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010). However, “equitable tolling is unavailable in most cases ...” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999); accord Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998) (). Indeed, the Supreme Court held that “a petitioner is entitled to equitable tolling only if he shows both that (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing.” Holland, 560 U.S. at 649 (internal quotation marks omitted). A petitioner bears the burden of proof to establish entitlement to equitable tolling. Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002). In the instant case, petitioner has brought forth no evidence whatsoever demonstrating that he is entitled to such tolling, and this Court knows of no reason that would support equitable tolling of the statute of limitations.[21] Lastly, it must also be noted that a petitioner can overcome the AEDPA's statute of limitations by making a convincing claim of “actual innocence” under McQuiggin v. Perkins, 569 U.S. 383 (2013). In Perkins, the United States Supreme Court held:
To continue reading
Request your trial