Ross v. Goodwin

• Decision Date: 28 April 2021
• Docket Number: CIVIL ACTION NO. 19-13970 SECTION: "S"(1)
• Parties: FREDRICK R. ROSS v. JERRY GOODWIN, WARDEN
• Court: U.S. District Court — Eastern District of Louisiana

FREDRICK R. ROSS v. JERRY GOODWIN, WARDEN

CIVIL ACTION NO. 19-13970 SECTION: "S"(1)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

April 28, 2021

REPORT AND RECOMMENDATION

Petitioner, Fredrick R. Ross, a state prisoner, filed this federal application seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. For the following reasons, his application should be DISMISSED WITH PREJUDICE.

On December 9, 2013, petitioner pleaded guilty in Louisiana state court to the crimes of manslaughter, attempted second degree murder, and possession of a firearm by a convicted felon. On that same date, he was sentenced to forty years on the manslaughter conviction, forty years on the attempted murder conviction, and twenty years on the firearm conviction; it was ordered that those sentences be served concurrently.¹

On August 11, 2014, petitioner sent the state district court judge a letter asking that he reconsider petitioner's sentence.² Petitioner followed that up with an additional letter on August16, 2014,³ and a formal motion for reconsideration of sentence on August 18, 2014.⁴ The district court denied relief on September 5, 2014.⁵

On October 24, 2014, petitioner filed with the state district court an "Application for DNA Testing Pursuant to C.Cr.P. Article 926.1."⁶ That application was denied on November 6, 2014.⁷

On June 7, 2015, petitioner filed an application for post-conviction relief with the state district court.⁸ The district court denied relief on June 26, 2015,⁹ as did the Louisiana Fifth Circuit Court of Appeal on October 7, 2015.¹⁰ On March 14, 2016, the Louisiana Supreme Court then refused to consider petitioner's related writ application because it was not timely filed.¹¹

On August 7, 2017, petitioner filed with the state district court a motion to correct an illegal sentence,¹² which was denied on August 16, 2017.¹³ His related writ applications were thereafter denied by the Louisiana Fifth Circuit Court of Appeal on November 7, 2017,¹⁴ and the Louisiana Supreme Court on January 8, 2019.¹⁵

In the interim, petitioner also filed with the state district court a motion to withdraw his guilty plea on September 26, 2018.¹⁶ That motion was denied on October 3, 2018.¹⁷ His relatedwrit applications were likewise denied by the Louisiana Fifth Circuit Court of Appeal on December 10, 2018,¹⁸ and the Louisiana Supreme Court on October 1, 2019.¹⁹

On January 19, 2019, petitioner sent a letter to the Clerk of the United States District Court for the Western District of Louisiana, which was construed by that court as a petition seeking habeas corpus relief pursuant to 28 U.S.C. § 2254 and transferred to this Court. Petitioner was later notified that he must either pay the required filing fee or submit an application to proceed in forma pauperis, and he was warned that the matter would be dismissed if he failed to do so. In response, petitioner sent a letter to the Court explaining that he understood that his federal petition would be dismissed and stating that he intended to file a new application "at a later date." Accordingly, that federal application was dismissed without prejudice on April 30, 2019.²⁰

On November 18, 2019, petitioner then filed the instant federal application.²¹ The state filed a response asserting a variety of defenses, including that the federal application should be dismissed because it was not timely filed.²² Although petitioner filed a reply to the state's response, he did not address the state's argument that his federal application was untimely.²³ He then subsequently filed a motion asking that this Court stay these federal proceedings while he returned to state court to file an amended and modified motion to withdraw his guilty plea.²⁴

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:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1).

In its response, the state argues that Subsection A is controlling in the instant case,²⁵ and petitioner does not argue otherwise.²⁶ Regarding that subsection, 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 becomesfinal 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). However, "[i]f the defendant stops the appeal process before that point," ... "the conviction becomes final when the time for seeking further direct review in the state court expires."Id. at 694; see alsoForeman v. Dretke, 383 F.3d 336, 338 (5th Cir. 2004) (Section 2244(d)(1)(A) gives alternative routes for finalizing a conviction: either direct review is completed or the time to pursue direct review expires).

Although federal, not state, law determines when a judgment is final for federal habeas purposes, a necessary part of the finality inquiry is determining whether the petitioner is still able to seek further direct review. SeeForeman, 383 F.3d at 338-39. As a result, this court looks to state law in determining how long a prisoner has to file a direct appeal. SeeCausey v. Cain, 450 F.3d 601, 606 (5th Cir. 2006); Roberts, 319 F.3d at 693.

Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (emphasis added).

Here, as noted, petitioner pleaded guilty and was sentenced on December 9, 2013. Because he did not file a direct appeal within the thirty days allowed by state law,²⁷ his state criminal judgment became final no later than January 8, 2014. Accordingly, his period for seeking federal habeas corpus relief commenced on that date and then expired one year later, unless that deadline was extended through tolling.

The Court first considers statutory tolling. Regarding the statute of limitations, the AEDPA expressly 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).

No fewer than two hundred fourteen (214) days of petitioner's federal limitations period elapsed before he first arguably tolled the period on August 11, 2014, by seeking reconsiderationof his sentence in the state district court.²⁸ As noted, the district court then denied relief on September 5, 2014,²⁹ and, therefore, tolling ceased no later than October 6, 2014, when petitioner's period for seeking review of that denial expired. See Grillette v. Warden, Winn Correctional Center, 372 F.3d 765, 769-71 (5th Cir. 2004) (a state application ceases to be pending when the time for supervisory review expires).³⁰

When the limitations period then resumed running at that point, petitioner had one hundred fifty-one (151) days of the period remaining. After an additional seventeen (17) days of the federal limitations period then elapsed, it was tolled a second time by petitioner's filing of his "Application for DNA Testing Pursuant to C.Cr.P. Article 926.1" on October 24, 2014.³¹ That application was denied by the state district court on November 6, 2014,³² and so tolling then again ceased on December 8, 2014, when petitioner's period for seeking review of that denial expired.³³

The federal limitations period then once again resumed running, now with one hundred thirty-four (134) days remaining. As a result, petitioner had only until April 21, 2015, to file his federal application or, barring that, to again toll the federal limitations period. However, as noted, he did not file the instant federal application until November 18, 2019. Moreover, he clearly is not entitled to further statutory tolling because he had no other applications for post-conviction or other collateral review³⁴ pending before the state courts on or before April 21, 2015.³⁵ Therefore, the instant federal application was untimely filed³⁶ unless he is entitled to the other form of tolling sometimes available, namely, equitable tolling.

The United States Supreme Court has expressly held that the AEDPA's statute of limitations is also 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) (holding that the AEDPA's statute of limitations can be equitably tolled "in rare and exceptional circumstances"). Indeed, the Supreme Court held that "a petitioner is entitled to equitable tolling only if he showsboth that (1) he...