Opinion
CIVIL ACTION NO. 00-1352, SECTION "R" (6).
December 8, 2000.
ORDER AND REASONS
This matter was referred to the United States Magistrate Judge for the purpose of conducting a hearing, if necessary, and submission of proposed findings of fact and recommendations pursuant to 28 U.S.C. § 636 (b)(1)(B) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases. Before the Court are plaintiff's objections to the Magistrate's Report and Recommendation. Having reviewed de novo the complaint, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, and the plaintiff's objections to the Report and Recommendation, the Court agrees that plaintiff's complaint should be dismissed with prejudice as time-barred.
I. BACKGROUND
Petitioner, Michael Banford, is a state prisoner currently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. Banford was convicted in state court of second-degree murder in violation of La. Rev. Stat. Ann. § 14:30.1 on March 23, 1994. The trial court sentenced Banford to life imprisonment without benefit of parole, probation or suspension of sentence.
Banford appealed his conviction and sentence to the Louisiana Fifth Circuit Court of Appeal claiming that the trial court erred in allowing into evidence impermissible hearsay testimony, the evidence was insufficient to support the conviction, and that there were patent errors on the face of the record. The Court of Appeal affirmed Banford's conviction on March 15, 1995. Hanford did not seek further review in the Louisiana Supreme Court. Thus, his conviction became final on March 29, 1995, fourteen days after the Court of Appeals' ruling.
On April 24, 1997, petitioner sought post-conviction relief in the 24th Judicial District Court, claiming that: (1) petitioner wasnot present when the jury instructions and the verdict were given; (2) the denial of Brady material; (3) insufficient evidence to convict; and (4) ineffective assistance of counsel. The trial court denied the application on July 24, 1998. On September 9, 1998, Hanford filed a post-conviction application with the Louisiana Fifth Circuit Court of Appeal and was denied relief on September 22, 1998. ( See State v. Banford, No. 98-KH-955 (La.App. 5th Cor. Sept. 22, 1998)). On November 4, 1998, petitioner filed a writ application with the Louisiana Supreme Court, which that court denied on March 19, 1999. See State ex rel. Michael Banford v. State of Louisiana, 739 So.2d 775 (La. March 19, 1999)
On May 4, 1999, Hanford filed another petition for post-conviction relief in the trial court. The trial court denied relief on June 3, 1999. ( See State Record Vol. 3 of 7, Order dated June 3, 1999). On July 13, 1999, Hanford filed for a writ of review in the Louisiana Fifth Circuit Court of Appeal, which was denied on July 19, 1999. ( See Banford v. Cain, No. 99-KH-788 (La.App. 5th Cir. July 19, 1999)). Banford then filed for a writ of review with the Louisiana Supreme Court on August 26, 1999. The court denied relief on March 17, 2000. ( See State ex rel. Michael Banford v. State of Louisiana, No. 1999-KH-2562 (La. March 17, 2000)).
Banford filed his federal habeas petition on March 17, 2000. For the following reasons, the Court agrees with the Magistrate Judge that Hanford's petition is untimely.
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).
For petitioners, like Banford, whose convictions became final prior to AEDPA's effective date, the Fifth Circuit has held that the one-year limitation period runs from the April 24, 1996 effective date of the AEDPA, and not from the date the state court judgment became final. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). Under Louisiana law, "[a] judgment rendered by the supreme court or other appellate court becomes final when the delay for applying for a rehearing has expired, and no application therefor has been made." See LA. CODE CRIM. PROC. ANN. art. 922B (West 2000). An application for rehearing may be made within fourteen days after the appellate or supreme court issues its judgment. See id. art. 922A. Banford's conviction thus became final on March 29, 1995, fourteen days after the appellate court affirmed his conviction and sentence and he failed to seek rehearing or to file a direct appeal to the Louisiana Supreme Court. He therefore had until April 24, 1997 to petition for habeas relief. Hanford filed this petition on March 17, 2000, nearly three years past the deadline.
Under the AEDPA, 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) (holding petitioners whose convictions became final prior to the enactment of AEDPA may rely on tolling provision). 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 according to the state's procedural requirements, such as 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))
The Court must thus examine whether Hanford had a "properly filed" application for post-conviction relief pending between April 24, 1996 and April 24, 1997 that would have tolled the AEDPA one-year grace period. On April 24, 1997, petitioner filed his first state post-conviction proceeding. Even assuming that this petition was "pending" under 28 U.S.C. § 2244 (d) (2) until the Louisiana Supreme Court denied relief on March 19, 1999, petitioner allowed fifteen days to pass before filing his second state post-conviction application with the trial court on May 4, 1999. Because Banford waited to file his state petition for post-conviction relief until nearly the end of his one-year grace period, time ran out for his federal petition before he filed his second petition for post-conviction relief in state court on May 4, 1999, "Once the one year statute of limitations has expired, it cannot thereafter be tolled by a motion for post-conviction relief." See Bogan v. Moore, 55 F. Supp.2d 597, 599-600 (S.D. Miss. 1999). Banford did not file his federal habeas petition until March 17, 2000. Thus, the Court agrees with the Magistrate Judge's determination that the petition was untimely.
Petitioner signed his application for state post conviction relief on or about April 17, 1997 and may have delivered it to a prison custodian on that date; however, the benefit of this additional seven days would not make petitioner's application timely.
The Court also agrees with the Magistrate Judge that this case does not present the rare and exceptional circumstances that would justify equitably tolling the one-year statute of limitations. See Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 119 S.Ct. 1474 (1999). See also Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999), cert. denied, 120 S.Ct. 1564 (2000) ("Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.") ( quoting Rashidi v. American Pres. Lines, 96 F.3d 124, 128 (5th Cir. 1996)). Accordingly, because Hanford did not file his petition for federal habeas corpus relief until nearly one year after the limitations period had expired, his petition must be dismissed as untimely.
III. CONCLUSION
For the foregoing reasons, the Court agrees with the United States Magistrate Judge that Hanford's application is time barred. Accordingly,
IT IS ORDERED that Banford's complaint be DISMISSED WITH PREJUDICE.