Ficher v. Goodwin et al, No. 2:2014cv02281 - Document 27 (E.D. La. 2019)

Court Description: ORDER AND REASONS ADOPTING REPORT AND RECOMMENDATIONS 14 - IT IS ORDERED that Petitioner Charles Ficher, Jr.'s petition against Respondent Jerry Goodwin be and hereby is DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan.(bwn)
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Ficher v. Goodwin et al Doc. 27 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A CH ARLES J. FICH ER, JR. CIVIL ACTION VERSU S N O. 14 -0 2 2 8 1 J ERRY GOOD W IN , W ARD EN , D AVID W AD E CORRECTION AL CEN TER SECTION "E"( 5) ORD ER AN D REAS ON S Before the Court is a Report and Recom m endation issued by Magistrate J udge Michael B. North recom m ending Petitioner Charles Ficher, J r.’s petition for federal habeas corpus relief be dism issed with prejudice as tim e-barred. 1 Petitioner objected to the Magistrate J udge’s Report and Recom m endation. 2 For the reasons that follow, the Court AD OPTS the Report and Recom m endation as its own, and hereby D EN IES Petitioner’s application for relief. BACKGROU N D Petitioner is an inm ate currently incarcerated in the Dixon Correctional Institute in J ackson, Louisiana. 3 In Novem ber 1992, he was indicted by an Orleans Parish gran d jury and charged with one count of second-degree m urder. 4 On October 26, 1993, a jury found him guilty of the charged count. 5 On Novem ber 9, 1993, his m otion for new trial 1 R. Doc. 14. R. Doc. 24. 3 R. Doc. 25. 4 State Rec., Vol. 1 of 3, Gran d J ury Indictm ent. The indictm ent refers to defendant as Charles “Fisher.” The state court record also includes the alternate spelling, “Fischer.” H is federal court petition, however, is styled Charles “Ficher.” 5 State Rec., Vol. 1 of 3, Min ute Entry, 10 / 26/ 93. 2 1 Dockets.Justia.com was denied and he was senten ced to life im prisonm ent without benefit of probation, parole or suspension of sentence. 6 On direct appeal, Petitioner’s appointed counsel requested a review for only errors patent and m oved to withdraw. 7 Petitioner, pro se, filed a supplem ental brief. 8 On J anuary 19, 1995, the Louisiana Fourth Circuit Court of Appeal affirm ed his conviction and sentence. 9 On J une 16, 1995, the Louisiana Suprem e Court denied his writ of certiorari. 10 Petitioner did not seek a writ of certiorari from the United States Suprem e Court. 11 On October 22, 1996, Petitioner filed his first application for post-conviction relief with the state district court. 12 On March 9, 1998, the state district court rendered judgm ent denying relief on the m erits. 13 On May 28, 20 0 3, Petitioner, having failed to receive a ruling from the state district court, filed his first writ of m andam us with the Louisiana Fourth Circuit Court of Appeal. 14 On J une 23, 20 0 3, the state appellate court issued a decision on Petitioner’s pending post-conviction application, determ inin g Petitioner was not entitled to relief. 15 Petitioner then filed a writ application with the Louisiana Suprem e Court. On August 20 , 20 0 4, the Louisiana Suprem e Court denied 6 State Rec., Vol. 1 of 3, Min ute Entry, 11/ 9/ 93. R. Doc. 14 at 2. 8 Id. 9 State v. Fisher, 94-KA-0 191 (La. App. 4 Cir. 1995), 648 So.2d 52 (Table); see State Rec., Vol. 2 of 3. 10 State v. Fisher, 95-KO-0 476 (La. 1995), 655 So.2d 341; State Rec., Vol. 2 of 3. 11 R. Doc. 14 at 2. 12 State Rec., Vol. 1 of 3, Uniform Application for Post-Conviction Relief. Petitioner’s application was sign ed and notarized on October 22, 1996, which is presum ably the earliest date he could have placed it in the prison m ail system . See Affidavit attached to PCR application; Causey v . Cain, 450 F.3d 60 1, 60 7 (5th Cir. 20 0 6) (requirin g federal habeas courts apply Louisiana’s m ailbox rule to determ ine the filin g date of a Louisiana state court filin g, which provides such a docum ent is considered “filed” as of the m om ent the prison er “placed it in the prison m ail system .”). 13 State Rec., Vol. 1 of 3, J udgm ent, 3/ 9/ 98 . 14 R. Doc. 14 at 3. 15 State v. Ficher (Fisher), No. 20 0 3-K-0 964 (La. App. 4 Cir. 20 0 3) (un published decision). 7 2 Petitioner’s writ application. 16 In Septem ber 20 0 4, Petitioner filed his second application for writ of m andam us with the Louisiana Fourth Circuit Court of Appeal. 17 The Louisiana Fourth Circuit denied Petitioner’s writ application “as repetitive.”18 On August 19, 20 0 5, the Louisiana Suprem e Court denied petitioner’s writ application as “m oot.”19 On October 6, 20 0 5, Petitioner filed his first federal habeas corpus application with this Court, asserting: (1) he was den ied a fair trial due to prosecutorial m isconduct; (2) his conviction was based on insufficient evidence; (3) he received ineffective assistance of counsel for failing to present witnesses on his behalf and to request a lim iting instruction regarding the use of prior inconsistent statem ents; and (4) the grand-jury indictm ent was unconstitutionally obtained. 20 Because his federal petition contain ed both exhausted claim s (Nos. 2 an d 3) and unexhausted claim s (Nos. 1 and 4), the district court dism issed the petition without prejudice for failure to exhaust state-court rem edies on Novem ber 19, 20 0 8. 21 Petitioner m oved for a certificate of appealability (“C.O.A”), which the Fifth Circuit Court of Appeals denied on October 6, 20 0 9, explaining “the district court correctly determ ined that Ficher’s petition was a ‘m ixed petition’ for failure to exhaust state rem edies for his [claim s nos. 1 and 4].”22 On March 18, 20 13, Petitioner filed a second application for post-conviction relief 16 State ex rel. Ficher v . State, No. 20 0 3- KH-20 71, 88 2 So.2d 564 (La. 20 0 4). R. Doc. 14 at 3. 18 State v. Ficher, No. 20 0 4-K-1587 (La. App. 4 Cir. 20 0 4) (unpublished decision). 19 State ex rel. Ficher v . State, No. 20 0 4-KH-28 20 , 90 8 So.2d 663 (La. 20 0 5). 20 R. Doc. 14 at 4. 21 Id. 22 See R. Doc. 23 (Order Denying Petition er’s C.O.A. Motion) filed in Charles Ficher v. Burl Cain, Civ. Action No. 0 5-6373 (E.D. La. 20 0 5). 17 3 with the state district court. 23 On May 14, 20 13, the state district court denied relief. 24 On Septem ber 4, 20 13, Petitioner subm itted a related supervisory writ application to the Louisiana Fourth Circuit Court of Appeal. 25 On October 3, 20 13, the appellate court found Petitioner’s claim s tim e-barred under La. Code Crim . P. art. 930 .8 . 26 On October 22, 20 13, Petitioner filed a supervisory writ application with the Louisiana Suprem e Court. 27 On J une 20 , 20 14, the Louisiana Suprem e Court denied the application as untim ely. 28 On Septem ber 24, 20 14, Petitioner filed the instant federal petition for habeas corpus relief, asserting: (1) he was denied a fair trial due to prosecutorial m isconduct and (2) ineffective assistance of trial counsel for failing to (a) present a witness, (b) request a lim iting instruction concerning proper use of prior inconsistent statem ents, and (c) challenge the grand-jury indictm ent. 29 The Respondent filed a response, arguing the petition should be dism issed as untim ely. 30 Petitioner filed a reply. 31 On Septem ber 8 , 20 17, the m agistrate judge issued a report and recom m endation recom m en ding the petition be dism issed with prejudice as untim ely. 32 On Novem ber 2, 20 17, then-District Court J udge Kurt Engelhardt issued an order adopting the report and recom m endation 33 and entered judgm ent in favor of Respondent. 34 On Novem ber 27, 20 17, the Court 23 State Rec., Vol. 3 of 3, Un iform Application for Post-Conviction Relief. The application contained in the state-court record is undated. However, in his reply, Ficher subm itted a copy of a withdrawal request slip for funds dated March 18, 20 13, which he claim s reflects the date he m ailed the PCR application to the state district court. R. Doc. 13. The Court will adopt that date, which coincides with the State’s assertion that “at som e point in early 20 13, he filed a n ew application for post-conviction relief.” R. Doc. 12 at 4. 24 State Rec., Vol. 3 of 3, District Court J udgm ent denyin g PCR signed May 14, 20 13. 25 State Rec., Vol. 3 of 3, State v. Charles Fischer, J r., 20 13-K-1315 (La. App. 4 Cir. Oct. 3, 20 13). 26 Id. 27 State ex rel. Charles Fischer, Jr. v. State, 20 13-KH-2543 (La. 6/ 20 / 14), 141 So.3d 279. 28 Id. 29 R. Doc. 1. 30 R. Doc. 12. 31 R. Doc. 13. 32 R. Doc. 14. 33 R. Doc. 16. 34 R. Doc. 17. 4 received a letter from Petitioner indicating he never received a copy of the m agistrate judge’s report and recom m endation. 35 On Novem ber 29, 20 17, the Court ordered Petitioner would have until Decem ber 29, 20 17 to file objections to the report and recom m en dation. 36 Petitioner filed an objection on Decem ber 29, 20 17. 37 AN ALYSIS I. Sta n d ard o f Re vie w In reviewing the m agistrate judge’s Report and Recom m endation s, the Court m ust conduct a de novo review of any of the m agistrate judge’s conclusions to which a party has specifically objected. 38 As to the portions of the report that are not objected to, the Court needs only review those portions to determ ine whether they are clearly erroneous or contrary to law. 39 Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court m ust defer to the decision of the state court on the m erits of a pure question of law or a m ixed question of law and fact unless that decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determ ined by the Suprem e Court of the United States.”40 A state court's decision is contrary to clearly established federal law if: “(1) the state court applies a rule that contradicts the governing law announced in Suprem e Court cases, or (2) the state court decides a case differently than the Suprem e Court did on a set of m aterially indistinguishable facts.”41 AEDPA 35 R. Doc. 21. Id. 37 R. Doc. 24. 38 See 28 U.S.C. § 636(b)(1) (“[A] judge of the court shall m ake a de novo determ in ation of those portions of the report or specified proposed findings or recom m endations to which an objection is m ade.”). 39 Id. 40 28 U.S.C. § 2254(d)(1). 41 W illiam s, 529 U.S. at 40 5– 0 6. 36 5 requires that a federal court “accord the state trial court substantial deference.”42 II. Sta tu te o f Lim itatio n s The AEDPA provides “[a] 1-year period of lim itation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgm ent of a State court.”43 The lim itation period runs from the latest of: ( A) th e d ate o n w h ich th e ju d gm e n t be cam e fin a l by th e co n clu s io n o f d ire ct re vie w o r th e e xp iratio n o f th e tim e fo r s e e kin g s u ch re vie w ; (B) the date on which the im pedim ent to filing an application created by State action in violation of the Constitution or laws of the United States is rem oved, 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 Suprem e Court, if the right has been newly recognized by the Suprem e Court and m ade retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claim s presented could have been discovered through the exercise of due diligen ce. 44 The one-year period of lim itation m ay be tolled in certain situations. First, the AEDPA statutorily allows the one-year lim itations period to be interrupted in the following regard: “[t]he tim e during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgm ent or claim is pending shall not be counted toward any period of lim itation under this subsection.”45 Second, the one-year period of lim itation m ay be equitably tolled in extraordin ary circum stances. 46 Third, a plea of actual innocence can overcom e the AEDPA’s one-year lim itations for filing a habeas petition. 47 42 Brum field v. Cain , 135 S. Ct. 2269 (20 15). 28 U.S.C. § 2244(d)(1). 44 Id. § 2244(d)(1)(A)-(D) (em phasis added). 45 Id. § 2244(d)(2). 46 Pace v. DiGuglielm o, 544 U.S. 40 8 , 418 (20 0 5) (citin g Irw in v. Dept. of Veteran s Affairs, 498 U.S. 89, 96 (1990 )). 47 McQuiggin v. Perkins, 569 U.S. 383, 392 (20 13). 43 6 Magistrate J udge North recom m ended this Court dism iss Petitioner’s petition as untim ely because Petitioner failed to file his federal habeas petition within the one-year statute of lim itations period. 48 This Court agrees with the m agistrate judge’s recom m en dation. A. On e -Ye ar Lim itatio n Pe rio d Generally, a petitioner m ust file his federal habeas petition within one year of the date on which his underlying crim inal judgm ent becom es “final.”49 “When a habeas petitioner has pursued relief on direct appeal through his state's highest court, his conviction becom es final ninety days after the highest court's judgment is entered, upon the expiration of tim e for filing an application for writ of certiorari with the United States Suprem e Court.”50 In this case, Petitioner’s state crim inal judgm ent of conviction becam e final on Septem ber 14, 1995 when the 90 -day period for seeking a writ of certiorari from the United States Suprem e Court expired and Petitioner had not filed for relief. 51 However, because Petitioner’s conviction predated the enactm ent of the AEDPA, Petitioner is entitled to a “grace period” of one year from the AEDPA’s date of enactm ent, April 24, 1996. 52 Accordingly, the grace period expired on April 24, 1997. Because Petitioner filed the instant federal habeas petition on Septem ber 24, 20 14, his petition was filed untim ely unless the one-year statute of lim itations was tolled or otherwise interrupted. 48 R. Doc. 14. 28 U.S.C. § 2244(d)(1)(A). 50 Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 20 0 8) (citin g Roberts v . Cockrell, 319 F.3d 690 , 693 (5th Cir. 20 0 3)). 51 See Roberts, 319 F.3d at 693. 52 Grillette v. W arden, W inn Correctional Center, 372 F.3d 765, 768 (5th Cir. 20 0 4) (citin g Egerton v . Cockrell, 334 F.3d 433, 435 (5th Cir. 20 0 3)). 49 7 B. Statu to ry To llin g Section 2244(d)(2) of the AEDPA provides the “tim e during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgm ent or claim is pending” shall not be counted toward the one-year lim itation period. 53 Accordingly, the tim e during which Petitioner’s tim ely-filed statecourt collateral-review rem ained pen ding—from October 22, 1996 through August 19, 20 0 5—is properly tolled under Section 2244(d)(2). After August 19, 20 0 5, the first application for post-conviction relief Petition er filed was his first application for federal habeas corpus review. However, an application for federal habeas corpus review is not an “application for State post-conviction or other collateral review” within the m eaning of Section 2244(d)(2). 54 Therefore, Petitioner’s federal application filed on October 6, 20 0 5 did not toll the one-year lim itation period under the AEDPA. The Report and Recom m endation states: “Ficher did not file any other applications for post-conviction relief or collateral review with the state district court until March 20 13.”55 Petitioner objects to this statem ent, arguing: [O]n Septem ber 30 th of 20 0 9, In case no. 0 9-30 0 14, Ficher v. Cain USDC No. 2:0 5cv-6373, under United States Circuit J udge Carolyn Dineen King, in the United States Court of Appeals, Fifth Circuit, [Petitioner] was denied without prejudice His request for a C.O.A. . . . Notwithstanding, Orleans Crim inal Parish had determ ined under [Rhines v. W eber, 544 U.S. 269 (20 0 5)] that there was no good cause for the Petitioner to exhaust his claim s first in state court. Which in term , created the com plex circum stances whereas the Petitioner could not go forward nor backwards (with his unexhausted claim !)[.] 56 The Court agrees with the m agistrate judge. First, it appears Petitioner’s argum ent is he was prevented from filing an application in state court after the federal district court 53 28 U.S.C. § 2244(d)(2). Duncan v. W alker, 533 U.S. 167, 181-82 (20 0 1). 55 R. Doc. 14 at 9. 56 R. Doc. 24 at 4-5. 54 8 dism issed his first federal application: to wit, because the state courts denied Petitioner’s writ application filed in October 1996, and because he brought no new claim s when he filed his first federal habeas petition in October 20 0 5, all of the claim s in his first federal application were exhausted. 57 However, as the district court held in 20 0 8, Petitioner’s federal application contained unexhausted claim s. 58 The Fifth Circuit subsequently held “the district court correctly determ ined Ficher’s petition was a ‘m ixed petition’ for failure to exhaust state rem edies for his prosecutorial m isconduct and unconstitutionally em paneled grand jury claim s.”59 Petitioner was therefore not prevented from filing an application in state court. Second, because Petitioner’s first federal application does not constitute an “application for State post-conviction or other collateral review” within the m eaning of Section 2244(d)(2), 60 Petitioner’s m otion for a certificate of appealability filed in the sam e m atter likewise does not constitute an “application for State post-conviction or other collateral review” within the m eanin g of Section 2244(d)(2). Third, and in an y event, even tolling the tim e during which Petitioner’s first federal application was pending, Petitioner’s instant federal application would still be untim ely. By the tim e Petitioner filed his state court application in March 20 13, the AEDPA’s one-year lim itations period had long since expired. Once the federal one-year lim itations period has expired, “[t]here is nothing to toll.”61 Accordingly, Petitioner’s state court application for post-conviction relief filed in March 20 13 does not toll the one-year 57 See R. Doc. 13 (Objection to Report and Recom m endation) filed in Charles Ficher v . Burl Cain, Civ. Action No. 0 5-6373 (E.D. La. 20 0 5). 58 See R. Doc. 14 (Order Adopting Report and Recom m endation) filed in Charles Ficher v. Burl Cain, Civ. Action No. 0 5-6373 (E.D. La. 20 0 5). 59 See R. Doc. 23 (Order Denying Petition er’s C.O.A. Motion) filed in Charles Ficher v . Burl Cain, Civ. Action No. 0 5-6373 (E.D. La. 20 0 5). 60 Duncan, 533 U.S. 181-8 2. 61 Butler, 533 F.3d at 318 . 9 lim itations period. Petitioner’s federal application is therefore untim ely, even including the applicable statutory tolling credit Petitioner’s state court application, filed on October 22, 1996, rem ained pending. C. Equ itable To llin g “Generally, a litigant seeking equitable tolling bears the burden of establishing two elem ents: (1) that he has been pursuing his rights diligently, and (2) that som e extraordin ary circum stance stood in his way.”62 In this case, Petitioner does not expressly argue he is entitled to equitable tolling. However, Petitioner argues: “Petitioner had inadvertently becom e J udicially stagnated up until the arrival of Martinez vs. Ry an” and “Petitioner filed his instant application reliance on Martinez within one-year of said decision.”63 However, “a m ere change in decisional law ordinarily does not constitute an extraordin ary circum stance under the rule.”64 Thus, even if Petitioner has m et burden to establish he has been pursuing his rights diligently, he has not satisfied his burden to establish an extraordinary circum stance stood in his way. The record likewise does not reveal any extraordinary circum stances that would warrant equitable tolling. Mistake, ignorance of the law, and a prisoner’s pro se status do not warrant equitable tolling. 65 Accordingly, the Court finds Petitioner is not entitled to equitable tolling. 62 Pace, 544 U.S. at 418; see also Holland v. Florida, 560 U.S. 631, 649 (20 10 ). R. Doc. 24 at 5-6. 64 Clark v. Stephens, 627 F. App’x 30 5, 30 7 (5th Cir. 20 15) (citing Gonzalez v. Crosby , 545 U.S. 524, 536– 37 (20 0 5); Hernandez v. Thaler, 630 F.3d 420 , 429-30 (5th Cir. 20 11)); see also Gonzalez, 545 U.S. at 536 (“The District Court's interpretation was by all appearances correct under the [appellate court’s] thenprevailin g interpretation of 28 U.S.C. § 2244(d)(2). It is hardly extraordinary that subsequently, after petition er's case was no longer pending, [the appellate court] arrived at a different interpretation [of the AEDPA].”). 65 Johnson v. Quarterm an , 483 F.3d 278 , 286 (5th Cir. 20 0 7); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 20 0 2); Fierro v. Cockrell, 294 F.3d 674, 68 2 (5th Cir. 20 0 2); Felder v. Johnson, 20 4 F.3d 168, 171 (5th Cir. 20 0 0 ). 63 10 D. Actu al In n o ce n ce “[A]ctual innocence, if proved, serves as a gateway through which a petitioner m ay pass whether the im pedim ent is a procedural bar . . . or, as in this case, expiration of the statute of lim itations.”66 “[T]enable actual-innocence gateway pleas are rare: ‘[A] petitioner does not m eet the threshold requirem ent unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.’”67 “To be credible, such a claim [of actual innocen ce] requires petitioner to support his allegations . . . with new reliable evidence . . that was not presented at trial.”68 To succeed on an actual innocence claim , “the petitioner m ust show that it is m ore likely than not that no reasonable juror would have convicted him in the light of the new eviden ce.”69 In the instant petition, Petitioner suggests he is actually innocent because prosecution witness, Robert Young, offered in consistent and therefore arguably unreliable testim ony at trial. 70 As “new” evidence in support of the actual innocen ce claim , Petitioner points to an affidavit he obtained from an uncalled defense witness, Kim m ie Alexander, whom he disclosed to defense counsel in advance of trial. In her affidavit, she states she saw som eone other than Petitioner shoot the victim . 71 In his objection to the report and recom m en dation, Petitioner reiterates his argum ent that Alexander’s testim ony is “new” evidence “not presented at trial” establishing his actual innocen ce. 72 66 McQuiggin, 569 U.S. at 38 6. Id. (quotin g Schlup v. Delo, 513 U.S. 298, 329 (1995)). 68 Schlup, 513 U.S. at 324. 69 Id. at 327. 70 R. Doc. 1 at 2-3. 71 R. Doc. 1-1 at 2. 72 R. Doc. 24 at 10 -11. 67 11 It is doubtful whether Alexander’s testim ony constitutes “new” eviden ce. In rejecting Petitioner’s direct appeal claim regarding the sufficiency of the evidence upon which Petitioner was convicted, the state district court held: “[e]ven if the defense im peached Young’s credibility, the state introduced other eviden ce which was sufficient to support the jury’s verdict.”73 In any event, Petitioner has established m erely the existen ce of conflicting evidence an d credibility issues, 74 not that “it is m ore likely than not that no reasonable juror would have convicted him in the light of the new evidence.”75 Accordingly, Petitioner’s actual innocence claim does not entitle him to tolling of one-year lim itations period. E. M a r t in e z In Martinez v. Ry an, the Suprem e Court held “a procedural default [im posed by state courts] will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.”76 Notably, “Martinez does not apply to § 2244(d)'s one-year lim itations period.”77 In his objection to the report and recom m en dation, Petitioner “subm its[] that Louisian a State Law and Federal law requires this Honorable Court to apply Martinez retroactively.”78 However, “the Suprem e Court has not m ade either Martinez or Trevino retroactive to cases on collateral review, within the m eaning of 28 U.S.C. § 2244.”79 Accordingly, Petitioner’s objection cannot 73 State v. Fisher, 95-0 476, at 4-5 (La. App. 4 Cir. J an . 19, 1995) (unpublished). Bosley v. Cain, 40 9 F.3d 657, 665 (5th Cir. 20 0 5). 75 Schlup, 513 U.S. at 327. 76 566 U.S. 1, 17 (20 12); see also Trevino v. Thaler, 133 S. Ct. 1911, 1912 (20 13). 77 Shank v. Vannoy , No. 16– 30 994, 20 17 WL 60 29846, at *2 (5th Cir. Oct. 26, 20 17) (citin g Lom bardo v. United States, 860 F.3d 547, 557– 58 (7th Cir. 20 17); Arthur v. Thom as, 739 F.3d 611, 630 – 31 (11th Cir. 20 14); Bland v. Superinten dent Greene SCI, 20 17 WL 38970 66, at *1 (3d Cir. 20 17)). 78 R. Doc. 24 at 7. 79 In re Paredes, 587 F. App’x 80 5, 813 (20 14). 74 12 succeed. Petitioner is not entitled to any relief under Martinez for his untim ely filing under the AEDPA. The Court, having considered the record, the applicable law, relevant filings, and the m agistrate judge’s Report and Recom m en dation finds the m agistrate judge’s findings of fact and conclusions of law are correct and hereby approves the United States Magistrate J udge’s Report and Recom m endation and AD OPTS it as its opinion in this m atter. 80 CON CLU SION IT IS ORD ERED that Petitioner Charles Ficher, J r.’s petition against Respondent J erry Goodwin be and hereby is D ISMISSED W ITH PREJU D ICE. N e w Orle a n s , Lo u is ian a, th is 2 n d d ay o f Au gu s t, 2 0 19 . ___________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT JU D GE 80 R. Doc. 9. 13