Summary
holding that a motion requesting documents did not toll the limitation period under Section 2244(d) because "it was preliminary in nature and did not directly call into question Gerrets' conviction or sentence"
Summary of this case from Krummel v. CainOpinion
Civil Action No: 01-3080 Section: "R" (5)
January 16, 2002
ORDER AND REASONS
Before the Court are petitioner Francis Gerrets' objections to the Magistrate's Report and Recommendation. Having reviewed de novo the petition, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, and petitioner's objections thereto, the Court dismisses Gerrets' petition with prejudice as time-barred.
I. Background
Petitioner Francis Gerrets is a state prisoner incarcerated in the Louisiana Department of Corrections' Work Training Facility/North, Pineville, Louisiana. On October 22, 1997, Gerrets pleaded guilty to two counts of fourth offense driving while intoxicated ("DWI") in the Twenty-Fourth Judicial District for the Parish of Jefferson, Louisiana. He was sentenced to concurrent jail terms of ten years. Petitioner did not directly appeal his conviction or sentences. His conviction thus became final on October 28, 1997. See LA. CODE.CRIM.PROC art. 914(B)(1).
On December 30, 1997, Gerrets executed a motion in which he requested a copy of his guilty plea and sentencing transcript. That motion was formally filed in the state trial court on January 7, 1998 and it was granted on April 30, 1998. The State mailed the transcript to Gerrets on May 8, 1998. On May 7, 1999, he signed a motion for clarification of sentence.
After reviewing Gerrets' petition, the Magistrate Judge recommended dismissal of the petition as untimely. Gerrets filed an objection to the Magistrate's report but failed to address the timeliness issue.
II. DISCUSSION
Congress enacted a strict statute of limitations for habeas corpus proceedings as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under the Act, "[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). The limitations period runs from the "date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The one-year statute of limitations for filing a petition is tolled if any properly filed application for post-conviction relief is pending in state court. See Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998). Specifically, the Act provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). A "properly filed application" is one submitted in accordance with the state's procedural requirements, such as the rules governing the time and place of filing. See Villegas v. Johnson, 184 F.3d 467, 469-70 (5th Cir. 1999) (citing Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998)). A court may raise the one-year time-bar sua sponte. Kaiser v. Johnson, 163 F.3d 326, 328-29 (5th Cir. 1999).
Here, Gerrets' conviction became final on October 28, 1997. He did not execute a motion for clarification of his sentence until May 7, 1999, over eighteen months after his conviction became final. As the magistrate points out, although Gerrets filed a motion for a free copy of his guilty plea and sentencing transcript on January 7, 1998, that motion does not qualify as an ". . . application for State post-conviction or other collateral review . . ." so as to toll the limitation period under Section 2244(d)(2) because it was preliminary in nature and did not directly call into question Gerrets' conviction or sentence. Tolling is especially inappropriate in this case because Gerrets does not rely on the October 22, 1997 plea transcript to support his application for federal habeas relief. Instead, he relies on the transcripts of two of his previous DWI cases to argue that he was unrepresented in those proceedings and that those convictions therefore could not be used to elevate his current offenses to fourth offense DWI's. The transcript Gerrets requested was not needed in order to determine whether he had counsel in his previous DWI cases. See Donovan v. Maine, 2002 WL 15802, *5 (1st Cir. 2002) ("Given the lack of need for particularity, citation to transcript was unnecessary in order to allege grounds for federal habeas relief. It follows that the state court's delay in furnishing the petitioner with transcript did not establish basis for equitable tolling."); Jihad v. Hvass, 267 F.3d 803, 806 (8th Cir. 2001) ("lack of access to trial transcript does not preclude a petitioner from commencing post-conviction proceedings and therefore does not warrant equitable tolling."); see also Brown v. Cain, 112 F. Supp.2d 585, 587 (E.D. La. 2000) ("Without a showing that petitioner specifically required the transcripts to file his State application, the Court will not deem any delay in processing Petitioner's request for transcripts to have been an impediment to filing his State application."). Regardless, as the magistrate notes, even if Gerrets' motion for a copy of the October 1997 transcript did toll the limitation period, it only did so for the four months in which it was pending, making Gerrets' present petition at least fourteen months too late. Therefore, the Court finds that Gerrets' petition is time-barred and the Court is unable to consider it.
III. Conclusion
For the foregoing reasons, petitioner's application for habeas corpus relief is DISMISSED with prejudice.