Pierre v. Cain et al, No. 2:2015cv05252 - Document 47 (E.D. La. 2019)
Court Description: ORDER AND REASONS ADOPTING REPORT AND RECOMMENDATIONS 40 - IT IS ORDERED that Petitioner Delis Pierre's petition for issuance of a writ of habeas corpus under 28 U.S.C. § 2254 be and hereby is DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan.(bwn)
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Pierre v. Cain et al Doc. 47 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A D ELIS PIERRE, Plain tiff CIVIL ACTION VERSU S N O. 15-52 52 N . BU RL CAIN , ET AL., D e fe n d an ts SECTION “E”( 4 ) ORD ER AN D REAS ON S Before the Court is a Report and Recom m endation issued by Chief Magistrate J udge Roby recom m ending Petitioner Delis Pierre’s petition for federal habeas corpus relief be dism issed with prejudice as tim e-barred. 1 Petitioner objected to the m agistrate judge’s Report and Recom m endation, albeit untim ely. 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 Louisiana State Penitentiary in Angola, Louisiana. 3 On J anuary 13, 20 11, Petitioner was charged by Bill of Inform ation in Tangipahoa Parish with two counts of arm ed robbery, one count of second degree kidnapping, and one count of purse snatching. 4 Petitioner was tried before a jury on J uly 19 and 20 , 20 11, and found guilty as charged on all counts. 5 On Septem ber 7, 20 11, the state trial court denied Petitioner’s m otions for a new trial and for post-verdict judgm ent 1 R. Doc. 40 . R. Doc. 45. 3 R. Doc. Nos. 3, 39. 4 St. Rec. Vol. 1 of 7, Bill of Inform ation , 1/ 13/ 11. 5 St. Rec. Vol. 1 of 7, J ury Verdict (Count 2), 7/ 20 / 11; J ury Verdict (Count 3), 7/ 20 / 11; J ury Verdict (Count 4), 7/ 20 / 11; Trial Transcript, 7/ 19/ 11; Trial Transcript, 7/ 20 / 11; St. Rec. Vol. 2 of 7, Trial Transcript (continued), 7/ 20 / 11; Trial Minutes, 7/ 19/ 11; Trial Min utes, 7/ 20 / 11. 2 1 Dockets.Justia.com of acquittal. 6 On October 17, 20 11, the trial court sentenced Petitioner. 7 The trial court also denied Pierre’s m otion to reconsider the sentences. 8 Thereafter, Petitioner directly appealed his conviction and sentences. 9 On Septem ber 12, 20 12, the Louisiana First Circuit affirm ed Petitioner’s convictions and sentences. 10 The Louisiana Suprem e Court denied Petitioner’s writ application on April 1, 20 13. 11 Petitioner did not file for review with the United States Suprem e Court. 12 On J une 26, 20 14, Petitioner subm itted to the state trial court an application for post-conviction relief. 13 On J uly 1, 20 14, the state trial court denied the application. 14 On Novem ber 3, 20 14, the Louisiana First Circuit denied Petitioner’s writ application. 15 On October 9, 20 15, the Louisiana Suprem e Court denied Petitioner’s subsequent writ application. 16 On May 23, 20 16, Petitioner subm itted to the state trial court a second application for post-conviction relief. 17 The state trial court denied the application on August 30 , 20 16. 18 On J anuary 10 , 20 17, the Louisiana First Circuit denied Pierre’s writ application. 19 6 St. Rec. Vol. 1 of 7, Motion for New Trial, 9/ 6/ 11; Motion for J udgm ent of Acquittal, 9/ 6/ 11; St. Rec. Vol. 2 of 7, Hearin g Minutes, 9/ 7/ 11. 7 St. Rec. Vol. 1 of 7, Sentencing Transcript, 10 / 17/ 11; St. Rec. Vol. 2 of 7, Sentencin g Minutes, 10 / 17/ 11. 8 St. Rec. Vol. 1 of 7, Motion to Reconsider Sentence, 11/ 7/ 11; Trial Court Order, 11/ 10 / 11. 9 St. Rec. Vol. 6 of 7, Appeal Brief, 20 12-KA-0 125, 4/ 30 / 12. 10 St. Rec. Vol. 6 of 7, 1st Cir. Opin ion, 20 12-KA-0 125, 9/ 21/ 12. 11 State v. Pierre, 110 So.3d 139 (La. 20 13); St. Rec. Vol. 4 of 7, La. S. Ct. Order, 20 12-KO-2227, 4/ 1/ 13; St. Rec. Vol. 6 of 7, La. S. Ct. Letter, 20 12-KO-2227, 10 / 5/ 12. 12 R. Doc. 40 at 5. 13 St. Rec. Vol. 6 of 7, Application for Post-Conviction Relief, 7/ 1/ 14 (dated 6/ 26/ 14). The Court will address the dating of this docum ent later in this Report. 14 St. Rec. Vol. 6 of 7, Trial Court Order, 7/ 1/ 14; Clerk’s Letter, 7/ 2/ 14. 15 State v. Pierre, No. 20 14-KW-1196, 20 14 WL 12570 0 14, at *1 (La. App. 1st Cir. Nov. 3, 20 14); St. Rec. Vol. 6 of 7, 1st Cir. Order, 20 14-KW-1196, 11/ 3/ 14. On J une 13, 20 19, the Court’s staff contacted the clerk of the Louisiana First Circuit and was advised that this writ application was tim ely filed by Pierre on August 14, 20 14. See St. Rec. Vol. 6 of 7, Notice of Intent, 8/ 1/ 14; Trial Court Order, 8/ 4/ 14. 16 State ex rel. Pierre v . State, 178 So.3d 998 (La. 20 15); St. Rec. Vol. 4 of 7, La. S. Ct. Order, 20 14-KH2465, 10 / 9/ 15; St. Rec. Vol. 6 of 7, La. S. Ct. Letter, 20 14-KH -2465, 11/ 22/ 14. 17 St. Rec. Vol. 5 of 7, Application for Post-Conviction Relief, 6/ 2/ 16 (dated 5/ 23/ 16). 18 St. Rec. Vol. 6 of 7, Trial Court Order, 8/ 30 / 16; St. Rec. Vol. 3 of 7, Clerk’s Letter, 8 / 31/ 16. 19 State v. Pierre, No. 20 16-KW-1330 , 20 17 WL 10 5962, at *1 (La. App. 1st Cir. J an . 10 , 20 17); St. Rec. Vol. 3 of 7, 1st Cir. Order, 20 16-KW-1330 , 1/ 10 / 17. 2 On May 25, 20 18, the Louisiana Suprem e Court denied Petitioner’s subsequent writ application. 20 On October 16, 20 15, Petitioner filed the instant federal petition for habeas corpus relief. 21 The State filed an opposition asserting the defenses of untim eliness and failure to exhaust. 22 After filing a reply, 23 Petitioner m oved on February 17, 20 16 for leave to am end his petition to include additional claim s that he argued were not exhausted because of prior acts of ineffective assistance of counsel and for a stay to allow him to com plete exhaustion. 24 The Court stayed the proceedings on April 11, 20 16 to perm it Petitioner an opportunity to exhaust his unexhausted claim s. 25 On Novem ber 13, 20 18, the Court lifted the stay im posed on April 11, 20 16. 26 On that sam e date, the Court granted Petitioner’s m otion to am end and supplem ent his petition. 27 In his petition, Petitioner asserts the following grounds for relief: (1) he was denied a fair trial when the state trial court denied the m otion for m istrial based on the introduction of other crim es evidence; (2) he received ineffective assistance when counsel failed to take action to prevent the playing of his statem ent that m entioned uncharged offenses; (3) he was denied effective assistance when counsel (a) failed to request that the District Attorney’s Office be recused, (b) failed to object to prosecutorial m isconduct, and (c) failed to request a continuance to investigate m itigating factors for sentencing; (4)(a) prosecutorial m iscon duct occurred when the prosecutor raised religious accountability 20 State ex rel. Pierre v. State, 243 So.3d 562 (La. 20 18); St. Rec. Vol. 3 of 7, La. S. Ct. Writ Application , 17KH-385, 3/ 2/ 17 (dated 2/ 1/ 17); St. Rec. Vol. 5 of 7, La. S. Ct. Letter, 20 17-KH-385, 3/ 7/ 17. 21 R. Doc. 3. The Clerk of Court filed the petition in Novem ber 20 15, but the original filing is dated October 16, 20 15. See R. Doc. 3-1. 22 R. Doc. 10 . 23 R. Doc. 14. 24 R. Doc. 15. 25 R. Doc. 16. 26 R. Doc. 25. 27 Id. 3 and destroyed Pierre’s credibility; (4)(b) the state trial court denied him due process when he was brought to trial without being arraigned on the purse snatching charge; (5) the state trial court erred when it denied the m otion to sever and for n ew trial; (6) the state trial court erred when it denied the m otion to recuse the district attorney and com m itted perjury; (7) the state trial court erred when it allowed him to appear for trial in prison garb; (8 ) the state trial court erred when it allowed a biased juror to serve; (9) the state trial court erred when it failed sua sponte to exam in e the voluntariness of his inculpatory statem ent when trial counsel failed to object or m ove to suppress the statem ent; (10 ) the state trial court erred by adm itting other crim es evidence; (11) the state trial court failed to establish his com petence and sanity; (12) the state trial court failed to adm onish the jury and otherwise address prosecutorial m isconduct; (13) the state trial court im posed an excessive sentence; (14) the State suppressed favorable evidence; (15) prosecutorial m isconduct occurred when the State (a) knowingly introduced uncorrected false eviden ce, (b) elicited false testim ony from witnesses, and (c) slandered petitioner’s character and introduced other crim es evidence; (16)(a) the State failed to properly notice its intent to use other crim es eviden ce; (16)(b) counsel failed to withdraw when there was a clear conflict of interest; (17)(a) he was denied a fair trial when the state trial judge failed to recuse him self; (17)(b) counsel failed to conduct a reasonable investigation in preparation for trial; (18) he received ineffective assistance when counsel failed to investigate petitioner’s m ental health, com petence, and the viability of an insanity defense; (19) he received ineffective assistance when counsel (a) failed to file for review of the den ial of m otions, (b) failed to present petitioner for trial in civilian clothes, (c) failed to object to the prosecutor’s attack on petitioner’s character, (d) m anipulated petitioner into signing a stipulation, (e) waived petitioner’s presence at sidebars during voir dire and 4 accepted a bias juror, (f) failed to object to the lack of notice for other crim es evidence, (g) failed to m ove to suppress the video interview, (h) deceived petitioner about the eviden ce to convince him to accept a plea offer, (i) failed to review the m otion for new trial and preserve issues for appeal, and (j) infringed on their confidentiality; and (20 ) he received ineffective assistance of appellate counsel for failing to include specific claim s requested by petitioner. 28 The State filed an opposition to Petitioner’s federal application on J anuary 2, 20 19, arguing Petitioner’s petition was not tim ely filed under the AEDPA and that a num ber of his claim s are in procedural default. 29,30 Petitioner filed a reply. 31 Chief Magistrate J udge Roby concluded in her Report and Recom m endation Petitioner’s claim s should be dism issed with prejudice as tim e-barred. 32 Petitioner filed an objection on J uly 25, 20 19, requesting the Court “adopt his previously filed Response to States [sic] argum ent of tim eliness while considering the following [argum ents in his objection].”33 AN ALYSIS I. Sta n d ard o f Re vie w In reviewing the m agistrate judge’s Report and Recom m endations, 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. 34 As to the portions of the report that are not objected to, the Court 28 R. Doc. 26. R. Doc. 32. 30 As Chief Magistrate J udge Roby states in the Report and Recom m endation, “[w]hile the record supports both defenses [of untim eliness and procedural default], for the followin g reasons, the Court finds that Pierre’s federal habeas petition was not tim ely filed and m ust be dism issed with prejudice for that reason.” R. Doc. 40 at 12. 31 R. Doc. 39. 32 R. Doc. 40 . 33 R. Doc. 45 at 5. 34 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.”). 29 5 needs only review those portions to determ ine whether they are clearly erroneous or contrary to law. 35 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.”36 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.”37 AEDPA requires that a federal court “accord the state trial court substantial deference.”38 II. Sta tu te o f Lim itatio n s The Anti-Terrorism and Effective Death Penalty Act of 1996 (“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.”39 The lim itation period runs from the latest of: (A) the date on which the judgm ent becam e final by the conclusion of direct review or the expiration of the tim e for seeking such review; (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 35 Id. 28 U.S.C. § 2254(d)(1). 37 W illiam s v. Tay lor, 529 U.S. 362, 40 5– 0 6 (20 0 0 ). 38 Brum field v. Cain , 135 S. Ct. 2269 (20 15). 39 28 U.S.C. § 2244(d)(1). 36 6 (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. 40 The one-year period of lim itation is subject to certain exceptions. For instance, the AEDPA expressly allows the one-year lim itations period to be interrupted in the following way: “[t]he 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 any period of lim itation under this subsection.”41 Additionally, the one-year period of lim itation m ay be equitably tolled in extraordinary circum stances. 42 Because Petitioner does not argue that any other exceptions to the one-year lim itations period apply, and because the Court agrees with the m agistrate judge that no other exceptions are applicable, 43 the Court addresses only whether Petitioner is entitled to statutory tolling or equitable tolling of the AEDPA one-year lim itations period. Chief Magistrate J udge Roby recom m en ded 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. 44 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 40 Id. § 2244(d)(1)(A)-(D) (em phasis added). § 2244(d)(2). 42 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 )). 43 As Chief Magistrate J udge Roby states in the Report and Recom m endation: “Pierre has asserted no excuse to avoid the expiration of the lim itations period. He has not asserted his actual innocence and has brought no new, reliable evidence to m eet the high burden set forth in McQuiggin v. Perkins, 569 U.S. 383 (20 13). Furtherm ore, the United States Suprem e Court’s holdin gs in Martinez v . Ry an, 566 U.S. 1 (20 12) and Trevino v. Thaler, 569 U.S. 413 (20 13), do not provide a basis for review of Pierre’s untim ely filed federal petition or his ineffective assistance of trial counsel claim s.” R. Doc. 40 at 17. 44 R. Doc. 40 . 41 Id. 7 date on which his un derlying crim in al judgm ent becom es “final.”45 The Court first addresses when petitioner filed his federal habeas petition. To determ ine when Petitioner’s federal habeas corpus petition was filed, courts apply the m ailbox rule. Petitioner argues his federal habeas corpus petition should be deem ed filed on October 14, 20 15, the date he wrote next to his signature on his petition. 46 However, under the m ailbox rule, the date prison officials receive the pleading from the inm ate for delivery to the court is considered the tim e of filing for lim itations purposes. 47 When the pleadings bear an official stam p date from the prison, the official stam p acts as proof of the date of presentation and preem pts the need to consider the inm ate’s signature date. 48 Courts m ay only presum e an inm ate’s signature date to be the date of presentation when there is no other proof of when the pleadings were presented for m ailing. In this case, the official stam p of the Louisiana State Penitentiary’s Legal Program s Departm ent reflects the petition and accom panying docum ents were received from Petitioner by prison officials on October 16, 20 15, for electronic m ailing to a federal court. 49 Further, as the m agistrate judge stated, “[h]ere [Petitioner] has provided only self-serving argum ent for the court to consider an d accept a different, earlier presentation date. The Court is not persuaded that his sign ature date should prevail over the official prison date stam p.”50 The Court now turns to the date Petitioner’s underlying crim inal judgm ent becam e final. “When a habeas petitioner has pursued relief on direct appeal through his state's 45 28 U.S.C. § 2244(d)(1)(A). R. Doc. 39 at 5. 47 Colem an v. Johnson, 184 F.3d 398 , 40 1 (5th Cir. 1999); Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998); Cooper v . Brookshire, 70 F.3d 377, 379 (5th Cir. 1995)). 48 Sm ith v. Cain, No. 12-20 14, 20 14 WL 28 98457, at *6 n .16 (E.D. La. J un . 26, 20 14); see also, England v . Cain, No. 15-0 961, 20 15 WL 5971196, at *4 n.33 (E.D. La. Oct. 14, 20 15) (Order adopting attached Report and Recom m endation ). 49 R. Doc. 1-1 (original deficient pleadin g). 50 R. Doc. 40 at 11. 46 8 highest court, his conviction becom es final ninety days after the highest court's judgm ent is entered, upon the expiration of tim e for filing an application for writ of certiorari with the United States Suprem e Court.”51 In this case, the Louisiana Suprem e Court denied Petitioner writ application on April 1, 20 13. 52 Petitioner’s convictions and sentences therefore becam e final 90 days later, on J uly 1, 20 13. 53 Accordingly, Petitioner had one year from J uly 1, 20 13, or until J uly 1, 20 14, to tim ely file a federal application for habeas corpus relief. Petitioner agrees his state conviction becam e final on J uly 1, 20 13. 54 Because Petitioner filed his federal habeas petition on October 16, 20 15, his petition was filed untim ely unless the one-year statute of lim itations was interrupted or otherwise tolled. 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. 55 A m atter is “pending” for § 2244(d)(2) purposes “as long as the ordinary state collateral review process is ‘in continuance.’”56 In this case, the one-year AEDPA filing period began to run on J uly 2, 20 13, the day after Petitioner’s convictions and sentences becam e final. The period continued to run from that date for 359 days, until 51 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)). 52 State v. Pierre, 110 So.3d 139 (La. 20 13); St. Rec. Vol. 4 of 7, La. S. Ct. Order, 20 12-KO-2227, 4/ 1/ 13; St. Rec. Vol. 6 of 7, La. S. Ct. Letter, 20 12-KO-2227, 10 / 5/ 12. 53 The last day of the filing period was Sunday, J un e 30 , 20 13, which left the last day to fall on the n ext busin ess day, Monday, J uly 1, 20 13. See La. Code Crim . P. art. 13; Fed. R. Civ. P. 6. 54 R. Doc. 39 at 10 . 55 28 U.S.C. § 2244(d)(2). 56 Carey v. Saffold, 536 U.S. 214, 219-20 (20 0 2); W illiam s, 217 F.3d 30 3, 310 (5th Cir. 20 0 0 ) (quotin g Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999)) (finding that a m atter is “pendin g” for Section 2244(d)(2) purposes until further appellate review is unavailable under Louisiana’s procedures.); see also Melancon v . Kay lo, 259 F.3d 40 1, 40 5 (5th Cir. 20 0 1). 9 J une 26, 20 14, when Petitioner filed his first application for post-conviction relief to the state trial court. 57 Petitioner agrees the tolling period began on J une 26, 20 14. 58 The oneyear lim itations period rem ain ed tolled from J une 26, 20 14 through October 9, 20 15, when the Louisiana Suprem e Court denied Petitioner’s writ application. At that tim e, Petitioner had six days rem aining to m eet the one-year AEDPA filing deadline. Petitioner agrees six days rem ain ed at this point. 59 The tim e expired on October 15, 20 15. Petitioner likewise agrees the one-year period expired on October 15, 20 15. 60 Petitioner did not file any state post-conviction or other collateral reviewing before October 15, 20 15. Petitioner objects to the finding in the Report and Recom m endation that he did not file his federal petition until October 16, 20 15, one day after the lim itations period expired. 61 Petitioner argues he filed his federal petition on October 14, 20 15, one day before the expiration of the lim itations period. 62 October 14, 20 15 is the date Petitioner placed next to his signature on his federal application. 63 The official stam p of the Louisiana State Pen itentiary’s Legal Program s Departm ent reflects the petition an d accom panying docum ents were received from Pierre by prison officials on October 16, 20 15, for electronic m ailing to a federal court. 64 57 With respect to this application, unlike his actual federal petition, Petitioner argues the Court should ignore his signature date of J une 23, 20 14 and consider the pleadin g filed under the m ailbox rule when it was taken from him by prison person nel on J une 26, 20 14. R. Doc. 39 at 6. Petitioner provides an exhibit in which he indicates that J une 26, 20 14, was the date the pleading was “placed in the hands of L.S.P. Class. Ofcr.” R. Doc. 39-1 at 1. The verification was signed by the “Ex-Officio Notary” prison official and indicates that the pleadin g was “sworn to and subscribed before” him on J une 26, 20 14 (despite Pierre’s indication that he signed it previously on J une 23, 20 14). The m agistrate judge stated: “The official declaration is deem ed credible . . . Nevertheless, even without prom pting by Pierre, the record dem onstrates that J une 26, 20 14, was the filin g date under the m ailbox rule.” R. Doc. 40 at 14. The Court agrees with the m agistrate judge and uses J une 26, 20 14 as the date on which Petitioner filed his first state court petition . 58 R. Doc. 39 at 10 . 59 Id. 60 Id. 61 R. Doc. 45 at 6-7. 62 R. Doc. 39 at 7-8; R. Doc. 45 at 7. 63 Id. 64 R. Doc. No. 1-1 at 27 (original deficient pleading). 10 As previously explained, under the m ailbox rule, the date prison officials receive the pleading from the inm ate for delivery to the court is considered the tim e of filing for lim itations purposes. 65 In this case, the official stam p from the Legal Program s Departm ent reflects that the federal pleading was received from Petitioner by prison officials on October 16, 20 15, the day after the AEDPA filing period expired. Accordingly, Petitioner’s federal petition deem ed filed on October 16, 20 15 was filed after the AEDPA filing period expired on October 15, 20 15. 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.”66 Extraordinary circum stances “would exist, for exam ple, if ‘the plaintiff was actively m isled by the defendant about the cause of action or was prevented in som e extraordin ary way from asserting his rights.’”67 “But, a ‘garden variety claim of excusable neglect’ by the petition does not support equitable tolling.’”68 In his objection to the Report an d Recom m endation, Petitioner argues “he should be entitled to equitable tolling due to his ongoing, nonwavering diligen ce an d circum stances outside of his control that prevented his tim ely filing, to wit, he has no control of when he receives ‘decisions’ from the courts.”69 Petitioner further argues: “Petitioner did not receive his La. Suprem e Courts Oct. 9 th decision until Oct. 14 and due 65 Colem an, 184 F.3d at 40 1; Spotville, 149 F.3d at 378; Cooper, 70 F.3d at 379. Pace, 544 U.S. at 418. 67 Lookingbill v. Cockrell, 293 F.3d 256, 264 (5th Cir. 20 0 2) (quoting Colem an, 18 4 F.3d at 40 2 (internal brackets and citation om itted)). 68 Id. (quotin g Rashidi v. Am . President Lines, 96 F.3d 124, 128 (5th Cir. 1996)) 69 R. Doc. 45 at 7. 66 11 to his Diligence and Knowledge of his rem aining 6 days to file, he had ready and waiting to be m ailed his § 2254 Petition at which tim e which he received decision on Oct. 14, he im m ediately and sim ply placed in his awaiting petition in the m ailbox.”70 Petitioner “respectfully requests this Honorable Court consider this: At the very m inim um it takes one day for m ail to get to its destination at L.S.P.”71 Even assum ing Petitioner has pursued his rights diligently, he has not m et his burden of establishing som e extraordinary circum stance stood in his way. The Fifth Circuit has “consistently [] denied tolling even where the petition was only a few days late.”72 For instance, in Lookingbill, the Fifth Circuit rejected a petitioner’s argum ent equitable tolling was warranted “because he m issed the deadline by only four days.”73 In that case, the Fifth Circuit explained: “[i]n past cases, we have focused on the reasons for m issing the deadlin e rather than on the m agnitude of the tardin ess.”74 The reasons for this focus are as follows: At the m argins, all statutes of lim itations an d filing deadlines appear arbitrary. AEDPA relies on precise filing deadlin es to trigger specific accrual and tolling provisions. Adjusting the deadlin es by only a few days in both state and federal courts would m ake navigating AEDPA's tim etable im possible. Such laxity would reduce predictability and would prevent us from treating the sim ilarly situated equally. 75 To establish an extraordinary circum stance, Petitioner would have to show, for exam ple, an “external force, such as governm ental interference” prevented Petitioner from tim ely 70 Id. (em phasis in original). (em phasis in original). 72 Lookingbill, 293 F.3d at 265 (citin g Ott v. Johnson, 192 F.3d 510 , 512 (5th Cir. 1999) (four days late), cert. denied, 529 U.S. 10 99 (20 0 0 ); Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (two weeks late); Fisher v. Johnson, 174 F.3d 710 , 712 (5th Cir. 1999) (seventeen days late), cert. denied, 531 U.S. 1164 (20 0 1); Felder v. Johnson, 20 4 F.3d 168, 171 (5th Cir.) (twenty-on e days late), cert. denied, 531 U.S. 10 35 (20 0 0 )). 73 Id. at 264. 74 Id. (citin g Fisher, 174 F.3d at 712, 715– 16 (refusin g to toll statute of lim itations for seventeen days despite prison er's confinem ent in psychiatric ward without access to glasses or legal m aterials); Ott, 192 F.3d at 513 (refusin g equitable tolling where petitioner m issed deadline by only a “few days”)). 75 Lookingbill, 293 F.3d at 264-65. 71 Id. 12 filing his federal petition. 76 In this case, Petitioner has m ade no such showing. Instead, Petitioner has argued it com m only takes at least one day for m ail to travel to the Louisian a State Penitentiary’s Legal Program s Departm ent, that Petitioner was aware of this fact, and that the Louisiana State Penitentiary Legal Program s Departm en t prom ptly stam ped the petition on October 16, 20 15. Like the petitioner’s argum ents for equitable tolling in Lookingbill, Petitioner’s argum ents for equitable tolling in this case constitute “‘garden variety claim [s] of excusable n eglect.’”77 Accordingly, Petitioner is not entitled to equitable tolling of the one-year statute of lim itations period. 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. 78 CON CLU SION IT IS ORD ERED that Petitioner Delis Pierre’s petition for issuance of a writ of habeas corpus under 28 U.S.C. § 2254 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 12 th d ay o f Au gu s t, 2 0 19 . _____________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT JU D GE 76 Flores, 981 F.2d at 236 (citing McCleskey v. Zant, 499 U.S. 467, 493 (1991)). Lookingbill, 292 F.3d at 265 (quotin g Rashidi, 96 F.3d at 128). 78 R. Doc. 40 . 77 13
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