Shelton v. Tanner et al, No. 2:2019cv00470 - Document 12 (E.D. La. 2019)

Court Description: ORDER AND REASONS ADOPTING REPORT AND RECOMMENDATIONS 9 - IT IS ORDERED that Petitioner Jessie Shelton's petition against Robert Tanner be and hereby is DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan.(bwn)
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Shelton v. Tanner et al Doc. 12 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A J ESSIE EU GEN E SH ELTON CIVIL ACTION VERSU S N O. 19 -4 70 ROBERT TAN N ER, W ARD EN RAYBU RN CORRECTION AL CEN TER SECTION "E"( 2 ) ORD ER AN D REAS ON S Before the Court is a Report and Recom m endation issued by Magistrate J udge J oseph Wilkinson, J r. recom m ending Petitioner J essie Eugen e Shelton’s petition for federal habeas corpus relief be dism issed with prejudice as tim e-barred. 1 Petitioner tim ely 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 B.B. “Sixty” Rayburn Correctional Center in Angie, Louisiana. 3 On May 10 , 20 10 , Petitioner was charged by bill of inform ation in St. Tam m any Parish with aggravated incest and oral sexual battery. 4,5 1 R. Doc. 9. R. Doc. 10 (Objection); R. Doc. 11 (Mem orandum in Opposition). 3 R. Doc. 5. 4 St. Rec. Vol. 1 of 4, Bill of Inform ation , 5/ 10 / 10 . 5 Petitioner challenges: “The m agistrate in his report, states that on May 10 , 20 10 the defendant was charged with aggravated incest and oral sexual battery on his daughter. That statem ent is N OT true. In Count 1, Defendant was charged with RS 14:78.1, with the victim being 14 years old. In Count 2, he was charged with oral sexual battery on another person in 1983.” R. Doc. 11 at 2-3 (em phasis in original). The Court notes Petitioner is correct, see R. Doc. 3-2 at 7 (Bill of Inform ation). However, the identity of the victim s involved in Count 1 and Count 2 has no bearin g on the m agistrate judge’s findin g that Petitioner’s federal habeas petition was filed untim ely. 2 1 Dockets.Justia.com On May 20 , 20 10 , Petitioner entered a not guilty plea to the charges. 6 On August 5, 20 10 , the state trial court granted Petitioner’s m otion to quash the bill of inform ation on the oral sexual battery count. 7 On the sam e date, Petitioner withdrew his form er plea to enter a guilty plea to aggravated incest. 8 On August 31, 20 10 , the state trial court sentenced Petitioner to twenty years in prison at hard labor, with one year suspended, followed by five years of supervised probation. 9 On August 2, 20 12, Petitioner signed and subm itted to the state trial court an application for post-conviction relief. 10 On August 29, 20 12, the state trial court denied relief, finding no m erit in the claim s. 11 Petitioner did not seek review of this ruling. 12 On October 15, 20 16, Petitioner signed and subm itted to the state trial court a second application for post-conviction relief. 13 To the Court’s knowledge, the state trial court has not yet ruled on Petitioner’s second application for post-conviction relief. 14 Also on October 15, 20 16 and over the course of the following few m onths, Petitioner’s counsel filed several m otions for recusal of the trial judge (Division D), recusal of the judge (Division H) presiding over the m otion to recuse the trial judge and re-allotm ent of the proceedings to the judge in Division I. 15 On May 3, 20 17, the state judge in Division H denied the m otions to recuse and re-allot. 16 On J uly 25, 20 17, the Louisiana First Circuit 6 St. R. Vol. 1 of 4, Minute Entry, 5/ 20 / 10 . St. Rec. Vol. 1 of 4, Plea Minutes, 8 / 5/ 10 ; Plea Transcript, 8/ 5/ 10 . 8 Id. 9 St. Rec. Vol. 1 of 4, Senten cing Minutes, 8/ 31/ 10 ; Sen tencing Transcript, 8/ 31/ 10 ; Probation Conditions, 8/ 5/ 10 . 10 St. Rec. Vol. 1 of 4, Application for Post-Conviction Relief, 8/ 6/ 12 (dated 8 / 2/ 12). 11 R. Doc. 9 at 3. 12 Id. 13 St. Rec. Vol. 2 of 4, Application for Post-Conviction Relief, 11/ 16/ 16 (dated 10 / 15/ 16). 14 R. Doc. 9 at 5. 15 St. Rec. Vol. 2 of 4, Motion to Recuse, 11/ 16/ 16; Motion to Recuse, 1/ 3/ 17; Motion to Recuse and Re-allot, 3/ 16/ 17. 16 St. Rec. Vol. 2 of 4, Hearin g Transcript, 5/ 3/ 17; Trial Court Order, 5/ 3/ 17. 7 2 denied Petitioner’s writ application seeking review of the denial of the m otions to recuse and re-allot. 17 On Decem ber 17, 20 18, the Louisiana Suprem e Court denied Petitioner’s writ application. 18 On J anuary 30 , 20 19, Petitioner filed the instant petition for habeas corpus relief. 19 Petitioner seeks federal habeas corpus relief on the following grounds: (1) he was denied due process in the allotm ent process; (2) the state trial court in St. Tam m any Parish lacked jurisdiction over his case, because the alleged crim e occurred in Washington Parish; (3) he was denied effective assistance of counsel when his counsel failed to challenge the allotm ent and jurisdiction of the court; (4) there was prosecutorial m isconduct during the allotm ent process, and he received ineffective assistance when his counsel did not challenge it. 20 On March 6, 20 19, the Governm ent filed an opposition to Petitioner’s federal petition. 21 In his Report and Recom m endation, Magistrate J udge Wilkinson concluded Petitioner’s claim s should be dism issed with prejudice as tim ebarred. 22 Petitioner filed a tim ely objection on J une 24, 20 19 23 and a m em orandum in support thereof on J une 27, 20 19. 24 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 17 State v. Shelton, No. 20 17-KW-0 749, 20 17 WL 3165978, at *1 (La. App. 1st Cir. J ul. 25, 20 17); St. Rec. Vol. 3 of 4, 1st Cir. Order, 20 17-KW-0 749, 7/ 25/ 17; 1st Cir. Writ Application, 20 17- KW-0 749, 5/ 26/ 17. 18 State v. Shelton, 258 So.3d 60 3 (La. 20 18); St. Rec. Vol. 4 of 4, La. S. Ct. Order, 20 17-KP1389, 12/ 17/ 18 ; La. S. Ct. Writ Application , 17-KP-1389, 8/ 9/ 17 (m etered 8/ 8/ 17). 19 R. Doc. 3. 20 Id. 21 R. Doc. 8. 22 R. Doc. 9 at 14. 23 R. Doc. 10 . 24 R. Doc. 11. 3 specifically objected. 25 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. 26 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.”27 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. 28 The one-year period of lim itation is subject to certain exceptions. First, 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.”29 Second, the one-year 25 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.”). 26 Id. 27 28 U.S.C. § 2244(d)(1). 28 Id. § 2244(d)(1)(A)-(D) (em phasis added). 29 Id. § 2244(d)(2). 4 period of lim itation m ay be equitably tolled in extraordinary circum stances. 30 Third, a plea of actual innocence can overcom e the AEDPA’s one-year lim itations for filing a habeas petition. 31 Magistrate J udge Wilkinson recom m ended this Court dism iss Petitioner’s petition as untim ely because Petitioner failed to file his federal habeas petition within the oneyear statute of lim itations period. 32 This Court agrees with the m agistrate judge’s recom m en dation. A. On e -Ye ar Lim itatio n Pe rio d When a petitioner does not appeal or tim ely seek reconsideration , the date on which a conviction becom es fin al is at the end of the period for seeking leave to file a notice of appeal under La. Code Crim . P. art. 914. 33 La. Code Crim . P. art. 914 requires a m otion for an appeal be m ade no later than “[t]hirty days after the rendition of the judgm ent or ruling from which the appeal is taken.”34 In this case, Petitioner did not seek reconsideration of his sentence im posed on August 31, 20 10 or pursue direct appeal, 35 and therefore his conviction becam e final on Septem ber 30 , 20 10 . Accordingly, Petitioner was required to file his federal habeas petition by no later than Septem ber 30 , 20 11. Because Petitioner filed his federal habeas petition on J anuary 30 , 20 19, his petition was filed untim ely unless the one-year statute of lim itations was interrupted or otherwise tolled. 30 Pace v. DiGuglielm o, 544 U.S. 40 8 , 418 (20 0 5) (citin g Irw in v. Dept. of Veterans Affairs, 498 U.S. 89, 96 (1990 )). 31 McQuiggin v. Perkins, 569 U.S. 383, 392 (20 13). 32 R. Doc. 9 at 14. 33 See Cousin v. Lensing, 310 F.3d 843, 8 45 (5th Cir. 20 0 2) (“[The petitioner] did not appeal or tim ely seek reconsideration , so the con victions becam e final on February 7, 1996” after the petitioner was convicted in J anuary 1996 (citing La. Code. Crim . P. art. 914)). 34 La. C. Cr. P. art 914(B)(1). 35 R. Doc. 9 at 2; The transcript reflects that Shelton waived his right to appeal as part of the plea agreem ent. St. Rec. Vol. 1 of 4, Plea Transcript, p. 5, 8/ 5/ 10 . 5 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. 36 Notably, a state habeas application does not interrupt the one-year lim itation period if it is “not filed until after the period of lim itation has expired.”37 In this case, the AEDPA one-year lim itation period expired Septem ber 30 , 20 11, one year from finality of his conviction. Petitioner’s first state court application for post-conviction relief was filed on August 2, 20 12, ten m onths after the AEDPA one-year period of lim itation expired. Petitioner does not dispute this fact. Accordingly, no tim e m ay be subtracted from the one-year lim itations period under Section 2244(d)(2). 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.”38 In his Report and Recom m endation Magistrate J udge Wilkinson states: Shelton has asserted no reason, and I can find none, that m ight constitute rare or exceptional circum stances why the one-year statute of lim itations period should be considered equitably tolled in his case. The record does not establish circum stances that m ight fit the restrictive boundaries of “exceptional circum stances” described in binding preceden t to warrant equitable tolling in this case. 39 36 28 U.S.C. § 2244(d)(2). Scott v. Johnson, 227 F.3d 260 , 263 (5th Cir. 20 0 0 ) (em phasis in original). 38 Pace, 544 U.S. at 418. 39 R. Doc. 9 at 9 (citing Holland v. Florida, 560 U.S. 631, 651-54 (20 10 ); Hardy v . Quarterm an, 577 F.3d 596, 599-60 0 (5th Cir. 20 0 9); United States v. W y nn, 292 F.3d 226 (5th Cir. 20 0 2); Colem an v. Johnson, 184 F.3d 398, 40 2 (5th Cir. 1999), cert. denied, 529 U.S. 10 57 (20 0 0 ); Fisher v. Johnson, 174 F.3d 710 , 715 (5th Cir. 1999), cert. denied, 531 U.S. 1164 (20 0 1); Cantu-Tzin v. Johnson, 162 F.3d 295, 30 0 (5th Cir. 1998); Davis v. Johnson, 158 F.3d 80 6, 8 0 8 , n.2 (5th Cir. 1998), cert. denied, 526 U.S. 10 74 (1999)). 37 6 In his Mem orandum in Opposition to the Fin dings of Magistrate J udge, Petitioner argues: “J essie Shelton did not have legal counsel after his conviction. His two private attorney’s did not seek m otion to reconsider senten ce nor appeal. They did not do anything for J essie Shelton between Septem ber 30 , 20 10 , and Septem ber 30 , 20 11.”40 Although ineffective assistan ce of counsel m ay constitute “extraordinary circum stances” warranting equitable tolling, “‘a garden variety claim of excusable neglect,’” such as a sim ple ‘m iscalculation’ that leads a lawyer to m iss a filing deadlin e, does not warrant equitable tolling.”41 Rather, m ore than “sim ple negligence” is required for an attorney’s actions to be extraordinary. 42 In any event, the record reflects, as Petitioner states, Petitioner “did not have legal counsel after his conviction.”43 Accordingly, ineffective assistance of counsel in tim ely filing Petitioner’s federal habeas petition cannot supply circum stances warranting equitable tolling. The Court agrees with Magistrate J udge Wilkinson that Petitioner has asserted no other reason “that m ight constitute rare or exceptional circum stances why the one-year statute of lim itations period should be considered equitably tolled in his case.”44 D. Actu al In n o ce n ce In this case, Petitioner has not asserted his actual innocence. However, because the Governm ent argues Petitioner is not actually innocent, 45 the Court addresses the effect of a claim of actual innocence on the AEDPA’s one-year lim itations period. “[A]ctual innocen ce, 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 40 R. Doc. 11 at 3. Holland, 560 U.S. at 651-52 (quotin g Irw in, 498 U.S. at 96; Law rence v. Florida, 549 U.S. 327, 336, (20 0 7)). 42 Id. at 652. 43 R. Doc. 11 at 3. 44 R. Doc. 9 at 9. 45 R. Doc. 8 at 6 (Response to Petition for Habeas Corpus Relief). 41 7 lim itations.”46 “[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 fin d him guilty beyon d a reasonable doubt.’”47 As previously stated, Petitioner has not asserted his actual innocen ce and has brought no new, reliable evidence to m eet the high burden set forth by the Suprem e Court in McQuiggin. Accordingly, the one-year lim itation period under the AEDPA is not tolled by any actual innocence claim . 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. 48 CON CLU SION IT IS ORD ERED that Petitioner J essie Shelton’s petition against Robert Tanner be and hereby is D ISMISSED W ITH PREJU D ICE. N e w Orle an s , Lo u is ian a, th is 2nd day of August, 2 0 19 . _ _ ___ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ SU SIE MORGAN U N ITED STATES D ISTRICT JU D GE 46 McQuiggin, 569 U.S. at 38 6. Id. (quotin g Schlup v. Delo, 513 U.S. 298, 329 (1995)). 48 R. Doc. 9. 47 8