Doc v. Cain
| Decision Date | 11 July 2014 |
| Docket Number | CIVIL ACTION NO. 6:14-cv-0811 SECTION P |
| Parties | JEREMY DWAYNE SMITH LA. DOC #523901 v. WARDEN BURL CAIN |
| Court | U.S. District Court — Western District of Louisiana |
Before the court is the petition for writ of habeas corpus filed on behalf of Jeremy Dwayne Smith pursuant to 28 U.S.C. §2254 on April 15, 2014. Petitioner is an inmate in the custody of the Louisiana Department of Public Safety and Corrections. He is incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. He is proceeding herein through counsel, Mr. Michael Anthony Thomas. Petitioner attacks his 2007 convictions for attempted second degree murder and armed robbery, entered 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 following reasons, IT IS RECOMMENDED that this petition be DENIED AND DISMISSED WITH PREJUDICE because petitioners claims are barred by the one-year limitation period codified at 28 U.S.C. §2244(d) and because petitioner's claims are procedurally defaulted.
On July 23, 2004, the Acadia Parish Grand Jury returned true bills charging petitioner with attempted second degree murder and armed robbery. The criminal prosecution was assigned docket number 65845. On January 26, 2007, petitioner was found guilty as charged following a trial by jury. On August 8, 2007, petitioner was sentenced to 40 and 50 years, respectively, the sentences to run consecutively.
Petitioner directly appealed to the Louisiana Third Circuit Court of Appeals raising a single assignment of error - sufficiency of the evidence. On May 28, 2008, the Third Circuit affirmed petitioner's convictions and sentences. State of Louisiana v. Jeremy Dwayne Smith, KA-07-1384, 984 So.2d 238 (La. App. 5/28/2008). Petitioner did not seek further direct review in the Louisiana Supreme Court. [See rec. doc. 2, pg. 4, ¶ 9(g)].
On March 1, 2010, petitioner (apparently through Mr. Thomas) filed an application for post-conviction relief in the Fifteenth Judicial District Court raising the following claims for relief: (1) that petitioner's sentences were excessive; (2) that the prosecutor engaged misconduct during closing arguments; (3) that prejudicial testimony of trial witnesses was admitted; (4) that petitioner was denied his right to confront witnesses; (5) that petitioner was denied due process because he was denied the grand jury transcript, (6) that petitioner was denied due process when the victim testified as an expert on ballistics, (7) trial court threatened defendant's witnesses and misused thesequestration order, and (8) ineffective assistance of trial counsel. [rec. doc. 2, ¶ 11(a) 1-5]. A hearing was held on May 4, 2011, at the conclusion of which, relief was denied. [rec. docs. 2, ¶ 11 (a) 6-8; 1-1, pg. 14-16].
On May 19, 2011, Mr. Thomas filed a Notice of Appeal seeking review of the denial of petitioner's application for post-conviction relief in the Third Circuit Court of Appeals; thereafter, several extensions of the return date for the appeal were granted. .
On November 7, 2011, the Third Circuit, citing La. C.Cr.P. arts. 912.1 and 930.6, ordered counsel to show cause why the appeal should not be dismissed since the judgment at issue was a not an appealable judgment. [rec. doc. 1-1, pg. 22]. Counsel thereafter acknowledged that the judgment was not appealable and requested the court to convert the appeal to a writ application, thereby invoking the court's supervisory jurisdiction. [rec. doc. 1-1, pg. 28].
On December 28, 2011, the Third Circuit dismissed the appeal and denied counsel's request to convert the appeal to an application for supervisory writs. In so doing, the Court permitted petitioner to file a proper application for supervisory writs within 30 days. [rec. doc. 1-1, pg. 26-28, State of Louisiana v. Jeremy Smith, 11-1371, 81 So.3d 1015, 2011 WL 6849641 (La. App. 3 Cir. 12/28/2011)].
On January 27, 2013, Mr. Thomas submitted a writ application. However on April 3, 2013, the Court denied writs because the wit application was deficient because it didnot comply with Rule 4-5 of the Uniform Rules of the Courts of Appeal; a copy of petitioner's application for post-conviction relief, the complete transcript of the May 4, 2011 evidentiary hearing and the exhibits submitted at the hearing were not submitted. [rec. doc. 1-1, pg. 33, State of Louisiana v. Jeremy Dwayne Smith, No. KW 12-00115 (La. App. 3 Cir. 4/3/2013)].
On January 27, 2012, Mr. Thomas sought rehearing; however, the Third Circuit returned the application for rehearing unfiled pursuant to Rule 2-18.7 of the Uniform Rules of the Courts of Appeal, which states that applications for rehearing will not be entertained on a denied writ. The Court invited counsel to file a new application curing the deficiencies. [rec. doc. 1-1, pg. 32].
There is no evidence that Mr. Thomas ever filed a new or proper writ application in the Third Circuit or the that Third Circuit ever reviewed the merits of petitioner's claims. Moreover, it does not appear that Mr. Thomas ever properly sought review in the Louisiana Supreme Court. This Court's research reveals no decision by the Louisiana Supreme Court with respect to petitioner's convictions or sentences, either on direct review or in collateral proceedings. Indeed, petitioner admits this fact in his petition, explaining that petitioner is indigent, and his aunt, who was providing funds for petitioner's counsel, became ill. [rec. doc. 2, pg. 7, ¶ 11(d) and (e); pg. 14, ¶ 13(a) and (b); pg. 7, ¶ 12, ground one, two, three, and four (b); pg. 4, ¶9(g)].
Rather, on April 15, 2014, Mr. Thomas filed a number of documents in this Court, denominated as "exhibits", unaccompanied by a petition for federal habeas corpus relief. [rec. docs. 1 and 1-1]. Thereafter, on April 21, 2014, Mr. Thomas filed a standardized petition for federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. [rec. doc. 2]. In this petition, the following claims are raised: (1) ineffective assistance of trial and appellate counsel; (2) petitioner was denied due process when the Court permitted prejudicial comments by the prosecutor and witnesses; (3) that petitioner's sentences were excessive; and (4) that there was discrimination in the selection of grand jury foremen in petitioner's case and historically.
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).1
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 (5th Cir. 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 (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 directly appealed his conviction to the Louisiana Third Circuit Court of Appeals. Notice of the Third Circuit's Judgment affirming petitioner's convictions and sentences was rendered on May 28, 2008. Therefore, under Louisiana Supreme Court Rule X, §5(a), petitioner had 30 days following the Third Circuit's mailing of its Notice of Judgment2 , or until June 28, 2008, to apply for review in the Louisiana Supreme Court for further direct review.3 The record in this case clearly establishes that petitioner didnot seek further review in the Louisiana Supreme Court. 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 June 28, 2008, 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 June 28, 2008, he had one year, or until June 28, 2009 to file his federal habeas corpus petition. The instant petition was not filed until, at the earliest, April 15, 2014.
Petitioner can not rely on the statutory tolling provision of §2244(d)(2) because by the time he filed his application for post-conviction relief in the Fifteenth Judicial District Court on March 1, 2010, the AEDPA period of limitations had already expired and could not be revived even if his application was otherwise timely under Louisiana law. See Butler, 533 F.3d at 318 ().
Thus, under § 2244(d)(1)(A), it is clear that the instant petition is untimely.
The Fifth Circuit has held that the AEDPA's one-year statute of limitations can, in rare and exceptional...
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