Starns v. Andrews

• Decision Date: 10 April 2008
• Docket Number: No. 06-30068.,06-30068.
• Citation: 524 F.3d 612
• Parties: James STARNS, Petitioner-Appellant, v. O. Kent ANDREWS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

524 F.3d 612

James STARNS, Petitioner-Appellant, v. O. Kent ANDREWS, Respondent-Appellee.

No. 06-30068.

United States Court of Appeals, Fifth Circuit.

April 10, 2008.

James Starns, Jackson, MS, pro se.

Dale R. Lee, Asst. Dist. Atty., Baton Rouge, LA, for Andrews.

Appeal from the United States District Court for the Middle District of Louisiana.

Before SMITH and PRADO, Circuit Judges, and YEAKEL^*, District Judge.

PRADO, Circuit Judge:

Petitioner-Appellant James Starns ("Starns"), proceeding pro se, challenges the decision of the district court denying his petition for a writ of habeas corpus as not timely filed. For the following reasons, we REVERSE and REMAND.

I. FACTUAL AND PROCEDURAL BACKGROUND

This habeas petition arises from Starns's conviction of manslaughter for the death of Emmilee Feierabend ("Feierabend"). On March 14, 1996, Starns met Feierabend at a bar. The next day, Starns and Feierabend shared several drinks at the bar. Seeing that Starns was too drunk to drive, Feierabend offered to drive Starns home. Instead, however, she drove them to a secluded area, allegedly to engage in sexual activity. What transpired next is not entirely clear, but in any event Starns shot and killed Feierabend. At his trial, Starns argued that he acted in self-defense, claiming that Feierabend was the initial aggressor.

The district attorney's office brought the case before a grand jury (the "first grand jury"). The first grand jury heard the testimony of Luis Gonzalez ("Gonzalez"), Feierabend's former employer, and then returned a "No True Bill," declining to charge Starns with any crime. Thereafter, the district attorney's office brought the case before a different grand jury (the "second grand jury"), which did not hear any testimony from Gonzalez. The second grand jury returned an indictment against Starns for second degree murder.

In preparing for the trial, Starns's attorney asked the state for any exculpatory evidence that it had in its possession. The state responded, in part, that Feierabend had been receiving psychiatric treatment for manic/depressive disorder and that the state intended to call her psychiatrist at trial. However, the prosecutor downplayed the importance of any mental health evidence at a separate pretrial hearing, stating that "I don't think there is any relevance to her mental condition or mental state. There has been no evidence whatsoever to call that into question." The state also told Starns as part of its response to his request for exculpatory evidence that Gonzalez had had contact with Feierabend two or three days before her death and that he stated she had been "acting strangely." At a pretrial hearing, Starns's counsel asked for more detail regarding Gonzalez's statements. The prosecutor responded that Gonzalez had testified before the grand jury (without stating which one), meaning that the state could not provide more detail regarding his testimony, but that "this is an incident two or three days prior [to Feierabend's death]. It is not on the day of the incident, so I personally think, once again, it is remote in time and distance from the actual killing." The state also furnished Starns's lawyer with Gonzalez's address and phone number. The state court rejected Starns's request to require the state to speak with Gonzalez further and provide Starns with additional information, ruling that "the obligation is on the defense to go forward with whatever else you want from this particular witness." Apparently, Starns's lawyer chose not to contact Gonzalez. Gonzalez did not testify at the trial.

The jury convicted Starns of the lesser-included offense of manslaughter, and the judge sentenced him to forty years' imprisonment. Starns appealed his conviction to the Louisiana intermediate court, which upheld his conviction, and the Louisiana Supreme Court denied his writ of certiorari.

After Starns's conviction, Feierabend's husband brought a wrongful death suit against Starns. Apparently, Starns's parents' homeowner's insurance would cover the claim, and the insurance company retained Amos Davis ("Davis") for this civil case. As part of discovery in the wrongful death action, Davis deposed Gonzalez on November 19, 2001. Gonzalez testified that Feierabend had contacted him about two days before her death and again on the day that she died. Gonzalez met with Feierabend for about an hour two days before her death, where she acted "very hyper," seemed "very disturbed," and had the "emotional state" of a person who was "not sane." He stated that Feierabend had four to five alcoholic drinks in front of her and that she said she had stopped taking her medications. She also told Gonzalez that she had "very few days left to live." On the day of her death, Feierabend left a message on Gonzalez's answering machine stating that "today would be [her] last day on earth" and that she was "going on a subway or expressway to heaven." Feierabend called Gonzalez a little while after leaving the message, reiterating these statements and also telling Gonzalez that she had made several tapes to various people in her life to let them know about the impact that they had had on her. She played the tapes she had made for Gonzalez and for one other person over the phone for Gonzalez to hear. According to Gonzalez, the tapes sounded similar to a suicide note. Finally, Gonzalez testified that in his previous conversations with Feierabend, she had told him that she had attempted to commit suicide in the past, that those attempts had been physically painful, and that the next time she tried to commit suicide she would find someone to do it for her. Gonzalez stated at the deposition that he relayed these same statements to the first grand jury, but that neither the district attorney nor Starns's lawyer had contacted him thereafter.

On December 18, 2001, Davis sent Starns's parents a letter and attached a transcript of the Gonzalez deposition. The letter stated that Davis had hand delivered the Gonzalez deposition transcript to Rodney Baum ("Baum"), Starns's new criminal defense lawyer, and Michelle Fournet, Starns's prior defense attorney. The letter also stated that Baum had notified Davis that Baum had started the process of reading the deposition.

On September 20, 2002—277 days after Davis notified Starns's parents about the Gonzalez deposition and 306 days after the deposition actually occurred—Starns filed a state post-conviction application for relief. The Louisiana trial and intermediate courts denied his petition. On January 14, 2005, the Louisiana Supreme Court denied Starns's application for a writ of certiorari, thereby exhausting his state court post-conviction remedies.

On March 24, 2005,¹ Starns filed a petition for a writ of habeas corpus in the district court, alleging a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and ineffective assistance of counsel. The state answered by asserting that the limitations period for Starns to seek habeas relief under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244, had run. Most relevant to Starns's petition, AEDPA requires a habeas applicant to bring an application for a writ of habeas corpus within one year of "the date on which the factual predicate for the claim or claims presented could have been discovered through the exercise of due diligence." Id. § 2244(d)(1)(D). The time that an application for state post-conviction relief is pending tolls the running of the federal one-year limitation. Id. § 2244(d)(2). Starns asserts that his application for federal habeas relief is timely based on his learning of the factual predicate for his claims on December 18, 2001, when Davis notified Starns's parents of the Gonzalez deposition, and the fact that his state petitions tolled the federal time limit. In particular, assuming Starns did not learn of the factual predicate for his claims until December 18, 2001, 277 days elapsed from this discovery to September 20, 2002, when he filed a state post-conviction application for relief. At that point, the federal time limitation remained tolled under § 2244(d)(2) until January 14, 2005, when the Louisiana Supreme Court denied his petition for review. Starns then filed his federal petition seventy days later, on March 24, 2005, meaning that under this calculation he met the one-year time limit with eighteen days to spare.

The Magistrate Judge's Report and Recommendation, however, concluded that Starns's federal application was late by seventeen days because Starns learned of the factual predicate for his claims on November 19, 2001, the date of the Gonzalez deposition. The Magistrate Judge concluded that Davis was "Starns's counsel" and learned of Gonzalez's testimony when taking the deposition. Based on the date of November 19, 2001, the Magistrate Judge found that Starns had not filed his state post-conviction application for relief until 305 days after he discovered the factual predicate for his claims through the exercise of due diligence.² This, along with the time from when Starns exhausted his state post-conviction remedies to when he filed his habeas petition, made his federal habeas petition fall outside of the one-year deadline in AEDPA. The district court adopted all of the Magistrate Judge's recommendations. The state did not object to the Magistrate Judge's Report and Recommendation, presumably because the Magistrate Judge recommended denying Starns's petition for a writ of habeas corpus. Starns submitted an objection to the Magistrate Judge's Report and Recommendation although due to postal issues stemming from Hurricane Rita, it arrived at the district court after the deadline for responses. Regardless, the district court considered Starns's objections as a motion for a new trial and denied his request. Thus, while the state never filed any objections, the district court appears to have considered Starns's objections even though...