Opinion
Civil Action No. 01-0493.
May 14, 2001.
ORDER
I. BACKGROUND
Petitioner, Charles Edward Boyd, is a state prisoner currently incarcerated at the David Wade Correctional Center, Homer, Louisiana. On October 21, 1996, Boyd pled guilty to two counts of attempted first degree murder and one count of attempted armed robbery in the Twenty-Fourth Judicial District Court for the Parish of Jefferson, State of Louisiana, and was sentenced to jail terms of fifty, fifty, forty-nine and one-half years, respectively, to be served concurrently. Boyd did not directly appeal his conviction or sentences. His conviction became final on October 27, 1996. LSAC-Cr.P. Art. 914(B)(1).
Boyd subsequently filed a motion for a copy of his guilty plea and sentencing transcript in the state trial court. That motion was denied on February 21, 1997. Petitioner then filed a writ with the Louisiana Fifth Circuit Court of Appeal, challenging the trial court's ruling. That writ application was denied on April 4, 1997. Boyd then sought writs from the Louisiana Supreme Court which, on September 5, 1997, granted the writ in part and ordered that he be provided with a copy of his guilty plea transcript. When Boyd was not immediately provided with a copy of the transcript, he filed a motion in the Louisiana Supreme Court requesting that the trial court be sanctioned. Boyd received a copy of the transcript on November 10, 1997.
Boyd alleges that he filed an application for post-conviction relief in the state trial court on May 1, 1998. When a ruling was not made promptly, he filed a petition for writ of mandamus in the Louisiana Fifth Circuit. On July 28, 1998, the Louisiana Fifth Circuit issued an order directing the trial court to act on Boyd's application for post conviction relief by August 12, 1998. The trial court acted on September 10, 1998, denying the requested relief. On that basis, the Louisiana Fifth Circuit denied Boyd's mandamus petition as moot on October 1, 1998.
Boyd contends that on November 1, 1998, he filed a "notice of intent" with the state trial court, indicating his desire to challenge that court's denial of post-conviction relief in intermediate appellate court. Boyd then filed another mandamus petition in the Louisiana Fifth Circuit, asking the appellate court to order the trial court to act on the notice. On April 9, 1999, Boyd's mandamus was denied. Boyd then filed yet another mandamus petition in the Louisiana Fifth Circuit asking that the trial court be ordered to act on his "notice of intent." This was denied by the Louisiana Fifth Circuit, noting that no action on Boyd's "notice of intent" was required for him to obtain review of the trial court's denial of post-conviction relief.
On May 5, 1999, Boyd filed an application for supervisory writs in the Louisiana Fifth Circuit challenging the trial court's September 10, 1998 denial of post-conviction relief. This was denied without prejudice on July 8, 1999, based on Boyd's failure to specify any claims for review. Approximately two months later, Boyd filed another writ with the Louisiana Fifth Circuit, challenging the trial court's denial of post-conviction relief. That writ application was denied on September 24, 1999. Pursuant to Louisiana Supreme Court Rule X, § 5(a), Boyd had thirty days within which to timely seek writs from the Louisiana Supreme Court. However, he waited until January 25, 2000 to file his writ application with the Louisiana Supreme Court. His writ application was denied by above tribunal on November 27, 2000. Boyd alleges that on January 22, 2001, he submitted a "notice of intent" to the Louisiana Supreme Court, announcing his intention to seek federal habeas relief from this Court. However, his habeas petition is dated February 12, 2001.
II. ANALYSIS
Under 28 U.S.C. § 2244(d)(1), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996) (effective April 24, 1996). state prisoners like Boyd now have one year from the date that their convictions become final to timely seek federal habeas relief Section 2244(d)(2) provides that the time during which a prisoner has a "properly filed" application for post-conviction or other collateral review "pending" before the state courts is not counted against the one-year limitation period. § 2244(d)(2). The one-year time bar may be raised sua sponte by the court.Kaiser v. Johnson, 163 F.3d 328 (5th Cir. 1999). In applying this rule to the current case, it is clear that Boyd has not timely filed his federal habeas petition, as he did not have litigation pending in state courts sufficient to toll the one-year limitation period.
As was held by the Fifth Circuit in Williams v. Cain, 217 F.3d 303 (5th Cir. 2000), a Louisiana prisoner's application for post-conviction relief ceased to be properly filed and pending for tolling purposes under § 2244(d)(2) where the prisoner, following the denial of relief by the intermediate appellate court, failed to apply for writs from the Louisiana Supreme Court within the thirty days prescribed by Louisiana Supreme Court Rule X, § 5(a). Williams, 217 F.3d at 305-11. The Louisiana Fifth Circuit Court of Appeal denied Boyd's application for supervisory writs on September 24, 1999. Boyd did not seek writs from the Louisiana Supreme Court until January 25, 2000, 123 days later. UnderWilliams, Boyd's application for post-conviction relief ceased to be "properly filed" and "pending" no later than on October 25, 1999. Boyd did not sign his habeas petition until February 12, 2001. As this is over one year later, the federal habeas petition is untimely. Being barred as such, the merits need not be fully discussed.
III. CONCLUSION
The Court, having considered the petition, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, and the Petitioner's objection the Magistrate Judge's Report and Recommendation, hereby APPROVES the Report and Recommendation of the United States Magistrate Judge, and adopts said report as its opinion in this matter. Therefore,
IT IS ORDERED that the petition of Charles Edward Boyd for issuance of a writ of habeas corpus under 28 U.S.C. § 2244, be, and the same is hereby, DENIED WITH PREJUDICE.