Thomas v. Tanner
| Decision Date | 23 August 2011 |
| Docket Number | CIVIL ACTION NO: 10-1795 |
| Parties | JAMES THOMAS, SR. v. ROBERT TANNER, WARDEN |
| Court | U.S. District Court — Eastern District of Louisiana |
This matter was referred to the United States Magistrate Judge for the purpose of conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed findings and recommendations for disposition pursuant to Title 28, United States Code, Sections 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. For the following reasons, it is hereby recommended that the instant petition be DISMISSED WITH PREJUDICE as untimely.
Petitioner, James Thomas, Sr., is a state prisoner incarcerated in the Rayburn Correctional Center in Angie, Louisiana, where he is serving a twenty year sentence1, having been convicted on February 23rd, 2005, after a plea of guilty to one count of driving while intoxicated, fourth offense and one count of driving while his license was suspended.2Petitioner claims that: 1) he was denied access to the courts when he was housed in a maximum security lock-down in West Carroll Detention Center; 2) his attorney was ineffective when he failed to prepare for trial or challenge the predicate offenses used to enhance his charged offense; 3) the conviction was obtained by the use of unconstitutional predicate offenses; 4) he was incompetent at the time he pled guilty; 5) the trial judge coerced his guilty plea; 6) the time limitations for bringing the charges against him were expired and counsel was ineffective in failing to object to the untimely prosecution; 7) the conviction was obtained through ineffective assistance of counsel, a claim which had to be twice raised in the state courts albeit on different grounds; 8) the trial court erroneously denied petitioner's third post-conviction application as time-barred without considering the exceptions under La. C.Cr. P. art. 930.8(A); and, 9) the Louisiana Court of Appeal, FifthCircuit abused its authority and denied petitioner due process and equal protection in its review of petitioner's claims.3 The State responds that petitioner is untimely in bringing his federal habeas petition and, alternatively, has not exhausted his state remedies with regard to all of his claims.4
For the following reasons, the court agrees with the State that Thomas' federal habeas petition is time-barred from federal review.
On February 23, 2005, petitioner pled guilty to one count of driving while intoxicated, fourth offense (a violation of La.R.S. 14:98.E) and one count of driving with a suspended license (a violation of La.R.S. 32:415), and was sentenced as noted above. The convictions and sentences were obtained in Case No. 02-1343, Division "N", on the docket of the Twenty-Fourth Judicial District Court, Parish of Jefferson, Louisiana.
Petitioner took no appeal, but instead filed several Uniform Applications for Post-Conviction Relief (PCR) in the state courts. His first PCR was filed on April 12, 2005, and was denied by the trial court on April 15, 2005.5 Petitioner sought review of this ruling by filing, on May 19, 2005, a supervisory writ with the Louisiana Court of Appeal, Fifth Circuitwho denied the application on May 24, 2005.6 No review was sought before the Louisiana Supreme Court.
On August 10, 2006, Thomas filed his second application for post-conviction relief, which was denied by the trial court on August 17, 2006.7 On January 5, 2007, petitioner filed for supervisory review of this decision with the Louisiana Court of Appeal, Fifth Circuit, said court finding no error in the trial court's ruling.8 No further review was sought.
On April 9, 2007, Thomas signed and dated his third PCR, entitled a "motion to correct illegal sentence", which was filed with the state district court on April 17, 2007.9 The motion/PCR was denied by the trial court as procedurally time-barred. This ruling was appealed to the Louisiana Court of Appeal, Fifth Circuit, on or about June 28, 2007 and that court denied relief on July 26, 2007, finding no error in the trial court's ruling.10 A requestfor review of this decision to the Louisiana Supreme Court was metered on August 28, 2007, with a supplement filed with the court on January 7, 2008. On September 19, 2008, the Louisiana Supreme Court denied that application as untimely. State ex rel. James Thomas, Sr. v. State, 992 So.2d 945 (La. 2008)(07-KH-2394).11
On July 14, 2008, Thomas filed a writ application, Writ 08-KH-2280, with the Louisiana Supreme Court, in light of that court's ruling in State v. Cordero, 993 So.2d 203 (La. 2008).12 On October 10, 2008, the Louisiana Supreme Court transferred Thomas' application to the Louisiana Court of Appeal, Fifth Circuit for reconsideration.13 Thomas also filed Writ No. 08-WR-890 with the Fifth Circuit, on October 18, 2008, requesting reconsideration of his prior pro se writ applications. On April 8, 2009, the Louisiana Court of Appeal, Fifth Circuit granted reconsideration but denied relief.14 A subsequent appeal tothe Louisiana Supreme Court was unsuccessful, with that court denying relief on April 9, 2010.15
Finally, petitioner filed the instant federal habeas petition in this court on or about June 5, 2010.16 The petition was supplemented on July 14, 2010 and the State filed a response to the petition on October 12, 2010. (Rec. Docs. 10, 18). In its response, the State argues that Thomas' federal habeas application is both time-barred and subject to dismissal for failure to exhaust state court remedies.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a petitioner has one year within which to bring his habeas corpus claims pursuant to 28 U.S.C. §2254, with this one year period commencing to run from "the latest of" either the date the petitioner's state judgment became final or the expiration of the time for seeking review. See28 U.S.C. § 2244(d)(1)(A) (West 2011), as amended by the AEDPA, P.L. 104-132, 110 Stat. 1220. In this case, Thomas' conviction became final, for federal limitations purposes, on March 25, 2005, after the 30 days had passed for the taking of an appeal and Thomas could no longer seek review of the trial court's sentencing decision with the state appellate court. See La. C.Cr. P. art.914. Accordingly, the court finds that Thomas' one year limitation period commenced to run on March 26, 2005. Under a plain reading of the statute, Thomas then had one year within which to file his federal habeas petition, or a deadline of March 27, 2006.17 Thomas did not file his federal habeas petition with this court until June 5, 2010.18Thus, his challenge to his 2005 conviction must be dismissed as untimely, unless the one-year statute of limitations period was interrupted as set forth in 28 U.S.C. § 2244(d)(2). Under that statutory provision, "[t]he 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."
As the previously mentioned procedural history indicates, Thomas filed his first state post-conviction application on April 12, 2005, allowing a lapse of only 17 days of the one year limitation period. Thomas' PCR remained pending and therefore tolled the limitationperiod until 30 days after the Louisiana Court of Appeal, Fifth Circuit, denied relief on May 19, 2005, or on June 20, 2005.19 On June 21, 2005, Thomas' limitations period again began to run, and he allowed 415 additional days to expire before he filed his second PCR on August 10, 2006. Since a total of 432 days had lapsed, petitioner's one year limitation period had run20 thus making his federal petition time-barred unless petitioner is entitled to equitable tolling.
The Supreme Court recently stated, consistent with U.S. Fifth Circuit precedent, that "the timeliness provision in the federal habeas corpus statute is subject to equitable tolling." Holland v. Florida,-U.S.-,-, 130 S.Ct. 2549, 2554, 177 L.Ed.2d 130 (2010). In doing so, it adopted the established standard for determining whether equitable tolling applies: "that a 'petitioner' is 'entitled to equitable tolling' only if he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). See also, Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558 (1999). "'Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in someextraordinary way from asserting his rights.'" Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. denied, 529 U.S. 1057, 120 S.Ct. 1564, 146 L.Ed.2d 467 (2000), quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996). "In order for equitable tolling to apply, the applicant must diligently pursue his §2254 relief." Id. Moreover, the petitioner bears the burden of establishing entitlement to equitable tolling in the AEDPA context. Philips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000). What constitutes an "extraordinary circumstance" necessarily involves a "fact-intensive" inquiry. Holland, 130 S.Ct at 2565.
In this instance, Thomas has filed an "Amendment to Petition" (Rec. Doc. 10), in which he sets forth his arguments for equitable and statutory tolling.21 First, Thomas indicates that the state created an "impediment" which prohibited him from timely filing his federal petition in that he was denied "access to the courts". Thomas reports that, the day after his...
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