Mitchell v. McCain
| Decision Date | 08 December 2016 |
| Docket Number | CIVIL ACTION NO. 16-13433 SECTION "S"(4) |
| Parties | ALBERT MITCHELL v. W.S. McCAIN, WARDEN |
| Court | U.S. District Court — Eastern District of Louisiana |
This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing if necessary, and to submit proposed findings and recommendations 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. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2) (2006).1
The petitioner, Albert Mitchell ("Mitchell"), is a convicted inmate incarcerated in the B.B. "Sixty" Rayburn Correctional Center in Angie, Louisiana.2 On September 27, 2007, Mitchell was charged by Bill of Information in Jefferson Parish with one count of being a felon in possession of a weapon and one count of possession of cocaine.3 He apparently also was separately chargedwith a misdemeanor count of possession of marijuana.4 Mitchell entered pleas of not guilty to the felony charges on October 9, 2007.5
The record reflects that, on August 31, 2007, as part of a federal grant called "Project Safe Neighborhood," Jefferson Parish Narcotics Detective Harold Bourgeois, Sergeant Todd Vignes, and Lieutenant John Ladd were patrolling for street-level narcotics in the Bunch Village area of Jefferson Parish, a federally designated high crime and drug trafficking area.6 The officers were riding in an unmarked Ford Explorer and wearing jeans, sheriff's office t-shirts, and bulletproof vests. They followed a white F-150 Ford truck that was the target of a drug investigation. The officers saw that the driver of the truck disregarded a stop sign, and Detective Bourgeois turned on the siren and lights and stopped the truck for the violation.
As the three officers approached the truck, Detective Bourgeois saw the driver, later identified as Mitchell, bend down toward the floorboard of the truck. Detective Bourgeois became concerned that Mitchell was reaching for a weapon or attempting to conceal contraband. He ordered Mitchell to get out of the truck "with his hands high," and Mitchell complied. Detective Bourgeois, still concerned that Mitchell may have a weapon, observed that one of Mitchell's hands was clenched in a fist. The detective ordered Mitchell to open his hands. Mitchell initially refused, and then opened his hand to reveal a clear plastic bag filled with off-white, rock-like objects whichlater proved to be cocaine. Detective Bourgeois also smelled the scent of marijuana on Mitchell's clothing and in the truck.
After Mitchell was placed under arrest, Lieutenant Ladd conducted a search of the F-150, and found a partially smoked cigar containing green vegetable material, which was consistent with and subsequently determined to be marijuana.
On May 20, 2009, Mitchell was tried before a jury on count two, possession of cocaine, and found guilty as charged.7 The trial judge also considered the evidence presented at the same trial and found Mitchell guilty of misdemeanor possession of marijuana.8 Mitchell eventually entered a plea of guilty to count one, felon in possession, and was sentenced to serve ten years in prison at hard labor.9
At a hearing held on June 25, 2009, the Trial Court denied Mitchell's motions for a new trial on the possession of cocaine charge.10 The Trial Court sentenced Mitchell to five years in prison for possession of cocaine and six months in parish prison for misdemeanor possession of marijuana.11 The State thereafter filed a multiple bill charging Mitchell as a fourth felony offender as to count two, possession of cocaine.12
At a hearing held on February 3, 2010, the Court adjudicated Mitchell to be a fourth felony offender, and resentenced Mitchell on count two as a fourth offender to serve forty years in prison.13
On direct appeal from the conviction for possession of cocaine, Mitchell's appointed counsel asserted that the State failed to present sufficient evidence to support the conviction.14 On May 25, 2010, the Louisiana Fifth Circuit affirmed Mitchell's conviction and sentence finding no merit in the claim.15
The Louisiana Supreme Court denied Mitchell's related writ application without stated reasons on October 21, 2011.16 Under federal habeas law, Mitchell's conviction and sentence became final ninety (90) days later, on January 19, 2012, because he did not file an application for writ of certiorari with the United States Supreme Court. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (); U.S. S. Ct. Rule 13(1).
Over one year and eight months later, on September 23, 2013, Mitchell signed and submitted an application for post-conviction relief to the state trial court asserting the followinggrounds for relief:17 (1) the conviction was obtained following an illegal search and seizure done without probable cause; and (2) he was denied effective assistance of counsel when counsel failed to file a motion to quash the bill of information based on lack of probable cause. After receiving a response from the State, the Trial Court denied the application finding that the first claim was procedurally barred from review under La. Code Crim. P. art. 930.4(C) because it could have been and was not raised on direct appeal and finding the second claim was without merit under Strickland v. Washington, 466 U.S. 668 (1984).18
The Louisiana Fifth Circuit denied Mitchell's related writ application on July 18, 2014, for the same reasons given by the state trial court.19 The Louisiana Supreme Court also denied Mitchell's subsequent writ application without stated reasons on June 19, 2015.20
On July 28, 2016, the clerk of this Court filed Mitchell's petition for federal habeas corpus relief in which he asserted three grounds for relief:21 (1) the state trial and appellate courts erred in denying him post-conviction relief under La. Code Crim. P. art. 930.4(C) and the Louisiana Supreme Court issued a one word denial without addressing the merits of his claims; (2) the conviction was obtained after an illegal search and seizure done with probable cause; and (3) hereceived ineffective assistance of counsel when counsel failed to move to quash the bill of information.
The State filed a response in opposition to the petition asserting that the petition was not timely filed.22 Alternatively, the State argues that the first claim is not cognizable on federal habeas review, the second claim is procedurally barred from review, and the third claim is without merit.
In his reply to the State's response, Mitchell contends that his petition should not be considered untimely due to his efforts to get copies of transcripts and other documents before seeking state post-conviction relief.23 He also argues that he is entitled to review of his Fourth Amendment and ineffective assistance of counsel claims.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214,24 applies to this petition, which is deemed filed in this Court under the federal mailbox rule on July 12, 2016.25 The threshold questions on habeas review under the amendedstatute are whether the petition is timely and whether the claim raised by the petitioner was adjudicated on the merits in state court; i.e., the petitioner must have exhausted state court remedies and the claims must not be in "procedural default." Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b), (c)).
As indicated above, the State contends that Mitchell's petition was not timely filed, and one of his claims is in procedural default. While both defenses have merit, the limitations defense is dispositive of Mitchell's petition. For the reasons that follow, Mitchell's petition was not timely filed under federal law and should be dismissed for that reason.
The AEDPA requires a petitioner to bring his § 2254 claim within one year of the date his conviction became final.26 Duncan v. Walker, 533 U.S. 167, 176-80 (2001). As calculated above, Mitchell's conviction was final under federal law on January 19, 2012. Pursuant to § 2244, Mitchell had one year from that date, or until January 18, 2013, to timely file a federal applicationfor habeas corpus relief which he did not do. Thus, literal application of the statute would bar Mitchell's petition as of that date unless he is entitled to tolling as provided for under the AEDPA.
Section 2244(d)(2) provides that 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. See 28 U.S.C. § 2244(d)(2). In order for a state post-conviction application to be considered "properly filed" within the meaning of § 2244(d)(2), the applicant must have complied with all of the State's procedural requirements, such as timeliness and place of filing. Pace v. DiGuglielmo, 544 U.S. 408, 413-14 (2005); Williams v. Cain, 217 F.3d 303, 306-08 & n.4 (5th Cir. 2000) (quoting Smith v. Ward, 209 F.3d 383, 384-85 (5th Cir. 2000)); Villegas v. Johnson, 184 F.3d 467, 468-69 (5th Cir. 1999), reh'g denied, 196 F.3d 1259 (5th Cir. 1999). For purposes of the AEDPA, a timeliness calculation in Louisiana requires the application of the prison mailbox rule to state pleadings. Causey v. Cain, 450 F.3d 601, 604-05 (5th Cir. 2006). The Court has applied this rule in presenting the procedural history recited above.
A matter is "pending" for § 2244(d)(2) purposes "as long as the ordinary state collateral review process is 'in continuance.'" Carey v. Saffold...
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