# Welch v. Vannoy

> District Court, E.D. Louisiana · May 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10185490

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** May 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10185490

## How later opinions describe it (automated extraction)

- explaining that a state application for post-conviction may “be pending, but not properly filed” for purposes of statutory tolling
- finding tolling not justified during petitioner’s stay in a psychiatric ward

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

FREDDY WELCH CIVIL ACTION

VERSUS NO. 19-2295

DARNELL VANNOY, WARDEN SECTION: “E” (1)

ORDER AND REASONS
Before the Court is a Report and Recommendation issued by Chief Magistrate
Judge Roby recommending Petitioner Freddy Welch’s petition for federal habeas corpus
relief be dismissed with prejudice as time-barred.1 Petitioner objected to the magistrate
judge’s Report and Recommendation.2 For the reasons that follow, the Court ADOPTS
the Report and Recommendation and DENIES Petitioner’s application for relief.
BACKGROUND
In his petition for habeas corpus, Petitioner Freddy Welch asserts he is entitled to
relief based on alleged Batson violations, the trial court’s failure to hold a pretrial Prieur
hearing, and ineffective assistance of counsel.3 The state argues the Court should deny
Welch’s petition because it is untimely.4
Welch is a convicted inmate currently incarcerated in the Louisiana State
Penitentiary in Angola, Louisiana. On April 17, 2007, he was indicted by a Terrebonne
Parish Grand Jury for second degree murder and attempted second degree murder.5 On
March 10, 2008, after trial, the jury found Welch guilty and sentenced him to life in prison

1 R. Doc. 12.
2 R. Doc. 13.
3 R. Doc. 3.
4 R. Doc. 16.
5 St. Rec. Vol. 1 of 4, Indictment, 4/17/07; Grand Jury Return, 4/17/07.
at hard labor without the benefit of parole, probation, or suspension of sentence.6 Welch
appealed his conviction and asserted the evidence against him was insufficient to support
the jury’s verdict.7 On February 12, 2010, the Louisiana First Circuit affirmed Welch’s
conviction.8 Welch filed a writ application with the Louisiana Supreme Court which was
denied without any stated reasons on October 1, 2010.9 Welch’s conviction became final

ninety days later on December 30, 2010.
Welch timely filed an application for state post-conviction relief on November 21,
2011.10 This motion remained pending for several years. On October 30, 2015, the state
trial court denied Welch’s claim of jury discrimination but did not rule on Welch’s other
claims.11 After several continuances, the court heard the remaining matters on April 19,
2017, and denied Welch relief on May 31, 2017.12 The court granted Welch until July 16,
2017 to seek review with the Louisiana First Circuit.13
Welch submitted his first writ application to the Louisiana First Circuit on June 23,
2017, but it was denied on September 5, 2017, as procedurally improper because Welch
failed to attach the required documents.14 In its September 5, 2017, ruling, the Louisiana
First Circuit allowed Welch to file a proper application by October 31, 2017. Welch then

6 St. Rec. Vol. 1 of 4, Sentencing Minutes, 3/10/08; St. Rec. Vol. 2 of 4, Sentencing Transcript, 3/10/08.
7 St. Rec. Vol. 3 of 4, Appeal Brief, 2009-KA-1609, 9/25/09
8 Welch, 30 So.3d 284; State v. Welch, 2009-1609 (La. App. 1 Cir. 2/12/10); St. Rec. Vol. 3 of 4, 1st Cir.
Opinion, 2009-KA-1609, 2/12/10.
9 State v. Welch, 45 So.3d 1095 (La. 2010); St. Rec. Vol. 3 of 4, La. S. Ct. Order, 2010-KO-0524, 10/1/10;
La. S. Ct. Letter, 2010-KO-0524, 3/9/10. See Rec. Doc. No. 11, pp. 3, 9.
10 St. Rec. Vol. 1 of 4, Minute Entry, 12/9/14; See Mail Receipt, 11/21/11.
11 St. Rec. Vol. 3 of 4, Trial Court Judgement, 10/30/15; Reasons for Judgment, 10/30/15; State’s Response,
8/11/15.
12 St. Rec. Vol. 3 of 4, Minute Entry, 4/19/17; Hearing Transcript, 4/19/17; St. Rec. Vol. 3 of 4, Trial Court
Judgment, 5/31/17; Reasons for Judgment, 5/31/17.
13 St. Rec. Vol. 3 of 4, Trial Court Order, 6/19/17; Notice of Intent, 6/16/17.
14 State v. Welch, No. 2017KW0880, 2017 WL 3888832, at *1 (La. App. 1st Cir. Sep. 5, 2017); St. Rec. Vol.
3 of 4, 1st Cir. Order, 2017-KW-0880, 9/5/17; St. Rec. Vol. 4 of 4, 1st Cir. Writ Application, 2017-KW-0880,
6/23/17.
refiled his application with the first circuit, and the court denied the second writ
application without stating reasons on February 5, 2018.15 Welch timely filed a writ
application with the Louisiana Supreme Court, which the court denied on February 25,
2019.16 On March 28, 2019, Welch filed the instant federal petition for habeas corpus
relief.17

LEGAL STANDARD
In reviewing the magistrate judge’s Report and Recommendations, the Court must
conduct a de novo review of any of the magistrate judge’s conclusions to which a party has
specifically objected.18 As to the portions of the report not objected to, the Court need only
review those portions to determine whether they are clearly erroneous or contrary to
law.19
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a
federal court must defer to the decision of the state court on the merits of a pure question
of law or a mixed question of law and fact unless that decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States.”20 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 Supreme Court cases, or (2) the state court decides a case differently

15 State v. Welch, No. 2017KW1525, 2018 WL 7041122, at *1 (La. App. 1st Cir. Feb. 5, 2018); St. Rec. Vol. 3
of 4, 1st Cir. Order, 2017-KW-1525, 2/5/18.
16 State v. Welch, 264 So.3d 434 (La. 2019); St. Rec. Vol. 3 of 4, La. S. Ct. Order, 2018-KH-0317, 2/25/19;
La. S. Ct. Letter, 2018-KH_317, 2/22/18.
17 R. Doc. 3.
18 See 28 U.S.C. § 636(b)(1) (“[A] judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which an objection is made.”).
19 Id.
20 28 U.S.C. § 2254(d)(1).
than the Supreme Court did on a set of materially indistinguishable facts.”21 AEDPA
requires a federal court “accord the state trial court substantial deference.”22
LAW AND ANALYSIS
Under AEDPA, a petitioner must bring a § 2254 claim within one year of the date
on which his or her underlying state criminal judgment became “final.”23 A state judgment

becomes “final,” and the statute of limitations for bringing a federal habeas petition
begins to run, on the date of “the conclusion of direct review or the expiration of the time
for seeking such review.”24 If a habeas petitioner pursues relief on direct appeal through
a state’s highest court, this means his or her judgment becomes final “ninety days after
the highest court’s judgment is entered, upon the expiration of time for filing an
application for writ of certiorari with the United States Supreme Court.”25
This one-year limitation is subject to certain exceptions, however. AEDPA
expressly allows the one-year limitations period to be tolled throughout “[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.”26 Additionally, the one-year
period of limitation may be equitably tolled in extraordinary circumstances.27

In this case, Welch’s conviction became final on December 30, 2010, ninety days
after the Louisiana Supreme Court denied his post-appeal writ application.28 Under §
2244(d)(1)(A), Welch had until December 30, 2011, one year later, to file a § 2254

21 Williams v. Taylor, 529 U.S. 362, 405–06 (2000).
22 Brumfield v. Cain, 135 S. Ct. 2269 (2015).
23 28 U.S.C. § 2244(d)(1)(A).
24 Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008).
25 Id.
26 28 U.S.C. § 2244(d)(2).
27 Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citing Irwin v. Dept. of Veterans Affairs, 498 U.S. 89,
96 (1990)).
28 R. Doc. 12, at 9.
petition.29 Welch did not file his petition until March 12, 2019, well after the one-year
limitations period. As a result, Welch’s petition is untimely unless his period for timely
filing a § 2254 petition was statutorily or equitably tolled. The Court finds neither
statutory nor equitable tolling render Welch’s petition timely.
A. Statutory Tolling Does Not Render Welch’s Petition Timely

Statutory tolling of the period for filing a § 2254 petition is set forth in §
22444(d)(2), which provides “[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.”30
In short, the limitations period for a § 2254 motion is tolled so long as the petitioner has a
(1) properly filed and (2) pending application for state post-conviction relief. For a state
post-conviction application to be “properly filed,” the applicant must have complied with
all the state’s procedural requirements, such as timeliness and place of filing.31 A petition
is “pending” for purposes of §2244(d)(2) “as long as the ordinary state collateral review is
‘in continuance.’”32

Welch’s one-year filing period began on December 31, 2010, and ran uninterrupted
for 325 days until he filed his first state application for post-conviction relief on November
21, 2011.33 The filing period was then tolled so long as his application was “pending.” The
trial court denied Welch post-conviction relief on May 31, 2017,34 and granted him until

29 Id.
30 28 U.S.C. §2244(d)(2).
31 Pace v. DiGuglielmo, 544 U.S. 408, 413-14 (2005); Williams v. Cain, 217 F.3d 303, 306-08 (5th Cir.
2000).
32 Carey v. Saffold, 536 U.S. 214, 219-20 (2002); Williams, 217 F.3d at 310 (quoting Bennett v. Artuz, 199
F.3d 116, 120 (2d Cir. 1999).
33 St. Rec. Vol. 1 of 4, Trial Court Order, 6/19/17; Notice of Intent, 6/16/17.
34 St. Rec. Vol. 3 of 4, Minute Entry, 4/19/17; Hearing Transcript, 4/19/17; St. Rec. Vol. 3 of 4, Trial Court
Judgment, 5/31/17; Reasons for Judgment, 5/31/17.
July 16, 2017, to seek review with the Louisiana First Circuit.35 Welch submitted a writ
application to the Louisiana First Circuit on June 23, 2017, but it was procedurally
improper and lacked the supporting documents needed under Rule 4-5 of the Louisiana
Uniform Rules 36 Accordingly, tolling stopped on July 16, 2017, because at that point,
Welch no longer had a “properly filed” application for state post-conviction relief

“pending” before the state court. Because statutory tolling stopped on that day, Welch’s
period for filing a federal § 2254 petition expired forty days later (the time remaining after
initially waiting 325 days to file his state-court petition), on August 25, 2019.37 Welch,
however, did not properly file his writ application until October 24, 2017.38
Welch argues he had a good reason for filing a deficient writ application because
the state failed to provide him with the documents needed for a proper writ filing in a
timely manner.39 He argues the First Circuit Court of Appeals gave him until October 31,
2017, to file a proper writ with the court, and the magistrate judge failed to consider that
Louisiana Rule of Appellate Procedure 4-3 gives the state appellate court the authority to
allow a prisoner to correct a deficient writ application in a reasonable amount of time.40

The Court disagrees with Petitioner’s arguments. Although in its September 5, 2017,
order, the Louisiana First Circuit advised Welch that he could have until October 31, 2017,
to file a proper writ application, this extension did not renew or extend the AEDPA filing

35 St. Rec. Vol. 3 of 4, Trial Court Order, 6/19/17; Notice of Intent, 6/16/17.
36 State v. Welch, No. 2017KW0880, 2017 WL 3888832, at *1 (La. App. 1st Cir. Sep. 5, 2017); St. Rec. Vol.
3 of 4, 1st Cir. Order, 2017-KW-0880, 9/5/17; St. Rec. Vol. 4 of 4, 1st Cir. Writ Application, 2017-KW-0880,
6/23/17.
37 See Artuz v. Bennett, 531 U.S. 4, 9 (2000) (explaining that a state application for post-conviction may “be
pending, but not properly filed” for purposes of statutory tolling).
38 R. Doc. 12, at 11.
39 Id.
40 R. Doc. 13, at 2–3.
period which had already expired on August 25, 2017.41 Further, nothing Welch filed after
August 25, 2017 could change the calculation of his already expired filing period.42 For
these reasons, Welch’s federal habeas petition filed under the mailbox rule on March 12,
2019, was filed after the AEDPA filing period expired, and statutory tolling did not render
it timely.

B. Equitable Tolling Does Not Apply to Welch’s Case
Equitable tolling is available to petitioners in cases in which rare or extraordinary
circumstances prevented timely filing of a federal habeas corpus petition.43 “Generally, a
litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he
has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way.”44 Equitable tolling is usually only afforded in situations where the
petitioner was actively misled or prevented in a way outside of his control from timely
asserting his rights.45 “A garden variety claim of excusable neglect does not support
equitable tolling.”46 For example, in Hardy v. Quarterman, the Fifth Circuit held equitable
tolling was warranted because the petitioner suffered a significant state-created delay

when, for nearly one year, the state appeals court failed in its duty under Texas law to
inform petitioner that his state habeas petition had been denied, petitioner diligently
pursued federal habeas relief, and petitioner persistently inquired to the court.47 In United

41 Cf. Roberts v. Cain, NO. 15-963, 2015 WL 7080546, at *3 (E.D. La. Nov. 13, 2015).
42 See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (a filing made after the expiration of the AEDPA
one-year filing period does not renew or extend the AEDPA filing period or provide a petitioner any tolling
benefits).
43 Pace, 544 U.S. at 419; Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), cert. denied, 531 U.S. 1164
(2001); Cantu-Tzin v. Johnson, 162 F.3d 295, 299 (5th Cir. 1998); Davis v. Johnson, 158 F.3d 806, 810–11
(5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999).
44 Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
45 Pace, 544 U.S. at 418–19.
46 Fisher, 174 F.3d at 715 (finding tolling not justified during petitioner’s stay in a psychiatric ward).
47 577 F.3d 596, 599-600 (5th Cir. 2009).
States v. Wynn, the Fifth Circuit held equitable tolling was warranted because the
petitioner was deceived by his attorney into believing that a timely motion to vacate was
filed.48 On the other hand, in Fisher v. Johnson, the Fifth Circuit held equitable tolling was
not justified during petitioner’s seventeen-day stay in a psychiatric ward, during which he
was confined, medicated, separated from his glasses and thus rendered legally blind, and

denied meaningful access to the courts.49
In this case, Petitioner argues he should be afforded equitable tolling of 40 days for
the State’s failure to provide him with the necessary documents to properly file his writ
application.50 Petitioner claims the state court provided him with a written copy of its
ruling but not the required copy of a written judgment or an evidentiary hearing transcript
that he was to attach to his writ before the July 16, 2017, deadline, which prevented him
from properly filing his writ.51 He argues that this Court should conclude that the failure
of the court to provide him with the required copy of a written judgment and an evidentiary
hearing transcript before July 17, 2017, qualifies as a state-created impediment to filing a
complete writ application and should justify equitable tolling.52

Welch has not shown he was subject to extraordinary circumstances that warrant
equitable tolling. His failure to immediately receive a hearing transcript and copy of the
judgment is, at most, mere garden variety negligence. It is not the kind of deceit or
repeated gross negligence that could compel the Court to employ equitable tolling.
Accordingly, the Court finds Welch is not entitled to equitable tolling of the one-year
AEDPA limitations period.

48 292 F.3d 226, 230 (5th Cir. 2002).
49 174 F.3d 710, 713 (5th Cir. 1999), cert. denied, 531 U.S. 1164 (2001).
50 R. Doc. 13 at 5.
51 R. Doc. 13 at 6.
52 R. Doc. 13 at 10.
CONCLUSION
The Court, after considering the record, applicable law, relevant filings and the
magistrate judge’s Report and Recommendation approves the United States Magistrate
Judge’s Report and Recommendation and ADOPTS it as its opinion in this matter.53
IT IS ORDERED that Petitioner Freddy Welch’s petition for issuance of a writ of
habeas corpus under 28 U.S.C. § 2254 is DISMISSED WITH PREJUDICE as time-
barred.

New Orleans, Louisiana, on this 8th day of May, 2020.

SUSIE og
UNITED STATES DISTRICT JUDGE

53 R. Doc 12.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185490. Public record. Not legal advice.