Darensbourg v. Rader et al, No. 2:2012cv01414 - Document 16 (E.D. La. 2014)

Court Description: ORDER AND REASONS ADOPTING REPORT AND RECOMMENDATIONS 14 . IT IS ORDERED that the federal petition of Anthony Darensbourg for habeas corpus relief is DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan.(bwn)
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U N ITED STATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A AN TH ON Y D AREN SBOU RG CIVIL ACTION ve rs u s N O. 12 -14 14 STEVE RAD ER, W ARD EN SECTION : "E" ( 1) ORD ER AN D REASON S Before the Court is a Report and Recom m endation issued by the Magistrate J udge recom m ending that Anthony Darensbourg's ("Darensbourg") petition for federal habeas corpus relief be dism issed with prejudice as untim ely under AEDPA.1 Darensbourg tim ely filed an objection to the Magistrate J udge's Report and Recom m endation. 2 The Court, after reviewing the petition, the record, the applicable law, the Report and Recom m endation of the United States Magistrate J udge, and Darensbourg's objection, finds no error in the Magistrate J udge's conclusion that Darensbourg's federal application for habeas corpus relief is untim ely and that petitioner has not m et the burden of establishing that he is entitled to equitable tolling. The Court hereby approves the Report and Recom m endation of the United States Magistrate J udge and adopts it as its own opinion, subject to the following clarifications. In recom m ending that Darensbourg's application be dism issed as untim ely, the 1 R. Doc. 14; 28 U.S.C.A. § 2244(d)(1). 2 R. Doc. 15. Magistrate calculated AEDPA's federal lim itations period as com m encing 30 days from Decem ber 27, 20 0 6, the date the Louisiana Fifth Circuit Court of Appeal m ailed notice of its judgm ent. The Magistrate determ ined that Darensbourg's writ application to the Louisiana Suprem e Court was untimely because it was filed after the 30 -day period expired, so his state crim inal judgm ent becam e final for the purposes of AEDPA on J anuary 26, 20 0 7, and the federal lim itations period expired one year later on J anuary 28, 20 0 8.3 For this reason, the state post-conviction relief proceedings filed by Darensbourg beginning May 12, 20 0 9 did not toll the federal lim itations period since the period had already expired. The Magistrate also states in her report that the "petitioner has brought forth no evidence dem onstrating that he is entitled to [equitable] tolling, and this Court knows of no reason that would support equitable tolling of the statute of lim itations."4 Accordingly, the Magistrate recom m ends the petition be dism issed with prejudice. In Darensbourg's objection, he asserts that his writ application to the Louisiana Suprem e Court was tim ely because he filed a m otion for an extension of tim e to file, which was granted by the Louisiana Suprem e Court, and he filed the writ application within the extended period.5 If so, the state crim inal judgm ent was not final until February 8, 20 0 8, after the 90 -day period for filing a w rit of certiorari to the United States Suprem e Court 3 R. Doc. 14, p. 6. 4 R. Doc. 14, p. 9. 5 R. Doc. 15, p. 1-2 and exhibits (A)-(B). elapsed.6 Petitioner then had one year from the date the state crim inal judgm ent becam e final to file a federal habeas corpus petition. Even considering the later date for the expiration of AEDPA's one-year period for filing a federal habeas corpus petition, Darensbourg's petition is still untim ely. AEDPA's one-year limitations period would have begun running on February 7, 20 0 8, and the federal application needed to be filed by February 9, 20 0 9.7 It was not filed until May 13, 20 12.8 The only way Darensbourg's application could be tim ely, then, is if the federal deadline was extended through tolling. Because Darensbourg's application for state post-conviction relief was not filed until May 19, 20 0 9, m ore than three m onths after the AEDPA deadline passed, he is not entitled to statutory tolling under § 2244(d)(2). Additionally, Darensbourg has not m et his burden of establishing that he is entitled to equitable tolling, which is only available in rare and exceptional circum stances where the petitioner "shows (1) that he has been pursuing his rights diligently, and (2) that som e extraordinary circum stance stood in his way and prevented tim ely filing."9 Accordingly, IT IS ORD ERED that the federal petition of Anthony Darensbourg for habeas corpus relief is D ISMISSED W ITH PREJU D ICE. 6 R. Doc. 15, p. 1-2; see also R. Doc. 13, p. 14 n.16. 7 February 7, 20 0 9 falls on a Saturday. Thus, the federal lim itations period was extended through Monday, February 9, 20 0 9. See Flanagan v. Johnson, 154 F.3d 196, 20 2 (5th Cir. 1998); Fed.R.Civ.P. 6(a). 8 R. Doc. 1. 9 Holland v. Florida, 560 U.S. 631, 649 (internal quotation m arks om itted); Davis v. Johnson, 158 F.3d 80 6, 811 (5th Cir. 1998). Hello This is a Test N e w Orle an s , Lo u is ian a, th is _ 26th _ d ay o f _ _ _ _ _August_ _ _ _ _ _ , 2 0 14 . ___ ____ ___ SU SIE MORGAN U N ITED STATES D ISTRICT JU D GE