Buckley v. Louisiana State

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CHRISTOPHER E. BUCKLEY CIVIL ACTION

VERSUS NO. 19-11172

STATE OF LOUISIANA SECTION “R” (3)

ORDER AND REASONS

Christopher E. Buckley petitions this Court for a writ of habeas corpus

under 28 U.S.C. § 2254.1 Pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C) and,

as applicable, Rule 8(b) of the Rules Governing § 2254 Cases, the Court

referred the matter to Magistrate Judge Dana M. Douglas. On October 29,

2020, Magistrate Judge Douglas issued a Report and Recommendation

(“R&R”), finding that petitioner’s claims were barred by the one-year statute

of limitations set out in 28 U.S.C. § 2244(d)(1)(A).2 Magistrate Judge

Douglas further found that petitioner was not entitled to statutory or

equitable tolling, and could not make out a claim of actual innocence.3

Accordingly, Magistrate Judge Douglas recommended dismissing the

1 R. Doc. 1.

2 R. Doc. 21 at 3-4.

3 Id. at 4-16.

petition with prejudice.4 On December 17, 2020, petitioner filed objections

to the R&R, arguing that he is entitled to equitable tolling and can make out

a claim of actual innocence.5

The Court has reviewed de novo the record, the applicable law, and

Buckley’s objections. Because Buckley is not entitled to tolling of the statute

of limitations, and because he cannot make out a claim of actual innocence,

the Court overrules his objections and adopts the R&R as its opinion.

I. DISCUSSION

As Magistrate Judge Douglas concludes, Buckley’s petition is untimely.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

provides a one-year statute of limitations for state prisoners seeking federal

habeas corpus relief. 28 U.S.C. § 2244(d)(1). That one-year period runs from

the latest of four triggering events, including, as relevant here, “the date on

which the judgment of conviction becomes final.” 28 U.S.C. § 2244(d)(1)(A).

The Fifth Circuit has instructed that, when a defendant does not seek review

of a state conviction to the state’s highest court, the judgment becomes final

when “the time for seeking further direct review in the state court expires.”

4 Id. at 17.

5 R. Doc. 25.

Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008). But the period is

interrupted during the time in which “a properly filed application for State

post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).

Here, Buckley was charged by bill of information with seven counts of

forcible rape.6 On the third day of his trial, Buckley withdrew his pleas of not

guilty and pleaded guilty to all seven counts.7 Buckley directly appealed his

conviction and sentence to the Louisiana Fourth Circuit.8 On July 3, 2013,

the Louisiana Fourth Circuit affirmed petitioner’s conviction and sentence.

State v. Buckley, 120 So. 3d 819, 822 (La. App. 4 Cir. 2013). Under Louisiana

Supreme Court Rule X, § 5(a), Buckley had 30 days to appeal that decision

to the Louisiana Supreme Court. Buckley did not appeal. Accordingly, on

August 2, 2013, the judgment of conviction became final, and the statute of

limitations for Buckley’s federal habeas petition began to run. See U.S.C.

§ 2244(d)(2).Under AEDPA, Buckley’s one-year statute of limitations

6 R. Doc. 1-1 at 28, 31.

7 Id. at 28.

8 R. Doc. 1-1 at 12-27.

expired on August 4, 2014,9 unless Buckley filed an application for post-

conviction relief in state court to interrupt the period.10

Buckley filed his federal habeas petition on May 16, 2019.11 Buckley

did not file his “motion seeking an extension of time to file an Application for

Post Conviction Relief” with the Louisiana Supreme Court until July 20,

2015.12 The Louisiana Supreme Court denied petitioner’s motion as

untimely under Louisiana Supreme Court Rule X, § 5. State ex rel. Buckley

v. State, 189 So. 3d 400 (La. 2016). Petitioner subsequently filed an

application for post-conviction relief in the state district court on April 12,

2016.13 Because the AEDPA statute of limitations period ran uninterrupted

from August 2, 2013 to August 4, 2014, the period expired before Buckley

ever filed his state-court application, and well before he filed his federal

habeas petition.

9 As noted by the Magistrate Judge in her R&R, because August 2, 2014

fell on a Saturday, petitioner’s one-year limitations period was

extended through Monday, August 4, 2014. See R. Doc. 21 at 4 n.21

(citing Fed. R. Civ. P. 6(a)).

10 R. Doc. 21 at 4 & n.21.

11 See R. Doc. 1 at 16; R. Doc. 21 at 3 n.16.

12 R. Doc. 21 at 2 n.5; see also R. Doc. 1-1 at 40-43.

13 R. Doc. 1-1 at 44-53.

A. Equitable Tolling

Having found that Buckley’s petition is untimely, the Magistrate Judge

then determined that petitioner was not entitled to equitable tolling of the

statute of limitations.14 Petitioner objects to the Magistrate Judge’s finding,

arguing that he is entitled to equitable relief because of the misconduct of his

attorney, Robert Jenkins.15 Specifically, Buckley represents that, after he

pleaded guilty, Jenkins informed him that he would be filing an appeal, but

failed to do so.16 Buckley also states that Jenkins ceased communications

with him after he pled guilty, and did not communicate with Buckley again

for several months.17 Buckley represents that, “after several months . . .

without any contact from his attorney,” he began writing letters to his

attorney and had family members call the attorney’s office.18

According to petitioner, after his family was “unable to contact Mr.

Jenkins for almost (3) years,” they called the Louisiana Fourth Circuit Court

of Appeals and found that Jenkins had filed an appeal, which the court had

14 R. Doc. 21 at 5-10.

15 R. Doc. 20 at 9-11; R. Doc. 25 at 1-6.

16 R. Doc. 20 at 2-3.

17 Id.

18 R. Doc. 25 at 2-3.

already decided.19 Buckley asserts that Jenkins neither informed him, of the

appeal nor provided him with any copies of the court’s decision.20 Instead of

appealing the appellate court’s decision, Buckley states that he filed a

complaint with the Louisiana disciplinary board, which ultimately

sanctioned Jenkins.21

Although AEDPA’s statute of limitations is subject to equitable tolling,

Holland v. Florida, 560 U.S. 631, 645 (2010), tolling is available only in “rare

and exceptional circumstances,” Davis v. Johnson, 158 F.3d 806, 811 (5th

Cir. 1998). In Holland v. Florida, the Supreme Court held that a petitioner

is entitled to equitable tolling “only if he shows both that (1) he has been

pursuing his rights diligently, and (2) some extraordinary circumstances

stood in his way and prevented timely filing.” 560 U.S. at 645.

The petitioner must show that he was “exercis[ing] diligence even

when [he] received inadequate legal representation.” Manning v. Epps, 688

F.3d 177, 185 (5th Cir. 2012) (holding that “[c]omplete inactivity” by

petitioner for more than nineteen months, even “in the face of no

communication from counsel[,] does not constitute diligence”); compare

Holland, 560 U.S. at 653 (holding that a petitioner diligently pursued his

19 R. Doc. 1-2 at 11 (Petitioner’s 2016 post-conviction relief application).

20 Id.

21 Id. at 3.

rights when he “not only wrote his attorney numerous letters seeking crucial

information and providing direction; he also repeatedly contacted the state

courts, their clerks, and the Florida State Bar Association . . . . And, the very

day that Holland discovered that his AEDPA clock had expired to [his

attorney’s] failings, Holland prepared his own habeas petition pro se and

promptly filed it with the District Court”). Additionally, courts “have

consistently held that pursuing claims against counsel in lieu of pursuing

habeas relief in a timely matter is not helpful in establishing diligence.” See

McKemie v. Cain, No. 15-5752, 2017 WL 3235443, at *6 & n.93 (E.D. La. July

28, 2017) (collecting cases).

Here, the Magistrate Judge determined that Buckley is ineligible for

equitable tolling because he did not exercise reasonable diligence.22

Although Buckley’s attorney failed to keep him reasonably informed about

the status of his appeal,23 Buckley still had an obligation to exercise due

diligence in pursuing his case. However, Buckley waited several months

before contacting his attorney to confirm an appeal had been filed on his

behalf, and then waited several years before asking a family member to verify

the status of his appeal with the court. The Court finds that such delays

22 R. Doc. 21 at 8.

23 R. Doc. 1-1 at 2 (Louisiana Attorney Disciplinary Board Order).

preclude a finding that petitioner exercised the “reasonable diligence”

required for equitable tolling. See United States v. Holder, No. 09-36, 2011

WL 2119239, at *5 (W.D. La. May 26, 2011) (holding that a defendant was

not entitled to equitable tolling because, “at some point before the habeas

limitations period had lapsed, the defendant’s repeated inability to contact

counsel should have compelled him to check with the Court of Appeals . . . to

determine whether an appeal had ben filed.”). Furthermore, although

petitioner asserts that his attorney’s misconduct proceeding was “lengthy”

and caused “further delay in his appellate proceedings,”24 the Court notes

that “reporting counsel for misconduct is irrelevant to the question of

diligence.” See Cain, 2017 WL 3235443, at *6. The Court thus finds that the

Magistrate was correct in finding that Buckley’s case is not a rare and

exceptional circumstance that justifies equitably tolling AEDPA’s statute of

limitations.

B. Actual Innocence

The Magistrate Judge further found that petitioner had not overcome

AEDPA’s statute of limitations by making a successful actual-innocence

24 R. Doc. 20 at 3.

claim.25 Petitioner objects to the Magistrate Judge’s finding, asserting that

her report is “written in a non-favorable manner that casts unreasonable

doubt” on his claim of actual innocence, especially given that “the alleged

victim herself stated, by sworn affidavit, [that] she had lied about Mr.

Buckley having sexually abused her.”26

Under McQuiggin v. Perkins, 569 U.S. 383, 386 (2013), proof of a

petitioner’s actual innocence “serves as a gateway through which a petitioner

may pass whether the impediment is a procedural bar . . . [or] expiration of

the statute of limitations.” In order to meet the “threshold requirement” of

actual innocence, petitioner must “persuade[] the district court that, in light

of the new evidence, no juror, acting reasonably, would have voted to find

him guilty beyond a reasonable doubt.” Id. (quoting Schlup v. Delo, 513 U.S.

298, 329 (1995)). The new evidence relied on by a petitioner must be

reliable, such as “exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence.” Schlup, 513 U.S. at 324. Because

“such evidence is obviously unavailable in the vast majority of cases, claims

of actual innocence are rarely successful.” Id.

25 R. Doc. 21 at 10-16.

26 R. Doc. 25 at 18.

Here, Buckley asserts he meets the “actual innocence” standard based

on the following evidence: (1) the victim recanted her rape allegations prior

to trial, (2) there is no DNA evidence connecting him to the crime, (3) test

results from a rape kit showed that the victim’s underwear tested negative

for the presence of seminal fluid or spermatozoa, and (4) that the victim had

pending charges against her at the time of trial, had tried to commit suicide

prior to the sexual abuse allegation, and had a history of filing false

allegations.27 The Magistrate Judge determined that petitioner pointed to

no “new” evidence because the evidence “was always within the reach of

[petitioner’s] personal knowledge or reasonable investigation.” Moore v.

Quarterman, 534 F.3d 454, 464-65 (5th Cir. 2008). Magistrate Judge

Douglas also found that even if the evidence were new, it was insufficient to

support a claim of “actual innocence.”28

Petitioner objects to the Magistrate’s findings, representing that the

evidence is new because, although it was known at the time of trial, it was

withheld from him by his attorney and the state.29 But petitioner provides

no evidence to corroborate his assertion that this information was

improperly withheld from him. Furthermore, his argument is undermined

27 R. Doc. 20 at 11-14.

28 R. Doc. 21 at 13.

29 R. Doc. 25 at 7-8, 13-15.

by the trial court transcripts,30 and his inconsistent representations about

when information was disclosed to him.31

Moreover, the evidence relied on by petitioner for his “actual

innocence” claim is insufficient for this Court to find that “it is more likely

than not that no reasonable juror would have found petitioner guilty beyond

a reasonable doubt.” See Schlup, 513 U.S. at 329. Petitioner’s objection

asserts that his new evidence is “circumstantial evidence sufficient enough

to support a colorable claim of ‘actual innocence’ and to cause a reasonable

jury to doubt, at trial, that any sexual abuse had even actually taken place

between Petitioner and [the] alleged minor victim.”32 But petitioner’s

evidence must do more than simply cause a jury to “doubt.” It must instead

persuade the Court that “no juror, acting reasonably, would have voted to

find him guilty beyond a reasonable doubt.” Id. The Court finds that the

30 R. Doc. 16 (“Buckley’s trial counsel stated on the record, while Buckley

was present in court, that he received the DNA notice prior to trial.”

(citing the trial transcript from May 9, 2011)).

31 Compare R. Doc. 20 at 13 (“[Petitioner] was not advised of the recanted

statement until the day his trial began because said recanted statement

had been withheld from him either by the State or his attorney.”), with

R. Doc. 25 at 8 (“Mr. Jenkins knew then that the alleged victim had

already recanted her statement the same night she made it, but Mr.

Jenkins failed to tell his client of the recanted. Mr. Buckley later

learned of Attorney Jenkins having intentionally withheld this

pertinent information from him for over two (2) years.”).

32 R. Doc. 25 at 15.

Magistrate was correct in finding that evidence of the victim’s recantation,

her pending charges, suicide attempt, and history of making false allegations

would only have potential impeachment value, which is generally insufficient

to make out a claim of “actual innocence.”33 See Munchinski v. Wilson, 694

F.3d 308, 335 (3d Cir. 2012) (“[M]ere impeachment evidence is generally not

sufficient to show actual innocence by clear and convincing evidence.” (citing

Sawyer v. Whitley, 505 U.S. 333, 349 (1992) (“This sort of latter-day

evidence brought forward to impeach a prosecution witness will seldom, if

ever, make a clear and convincing showing that no reasonable juror would

have believed the heart of [a witness’s] account of petitioner’s actions.”).

The Court also finds that the lack of DNA evidence and the results of

the rape test kit fail to establish petitioner’s innocence. See McAffee v.

Procunier, 761 F.2d 1124, 1127 (5th Cir. 1985) (holding that results from a

rape kit that found “no seminal stains, spermatozoa, or blood stains” did not

establish [defendant’s] innocence,” but “merely fail[ed] to prove his guilt”).

Moreover, under Louisiana’s definition of rape, the evidence that the victim’s

underwear tested negative for the presence of spermatozoa is not

determinative of whether a rape occurred. See La. Rev. Stat. § 14:41

(“Emission is not necessary, and any sexual penetration . . . however slight,

33 R. Doc. 21 at 14.

is sufficient to complete the crime.”). Accordingly, the Court finds that

petitioner is not entitled to a timeliness exception based on actual innocence.

Rule 11 of the Rules Governing Section 2254 Proceedings provides that

“[t]he district court must issue or deny a certificate of appealability when it

enters a final order adverse to the applicant. Before entering the final order,

the court may direct the parties to submit arguments on whether a certificate

should issue.” Rules Governing Section 2254 Proceedings, Rule 11(a) (noting

that § 2253(c)(2) supplies the controlling standard). The “controlling

standard” for a certificate of appealability requires the petitioner to show

“that reasonable jurists could debate whether (or, for that matter, agree that)

the petition should have been resolved in a different manner or that the

issues presented [are] ‘adequate to deserve encouragement to proceed

further.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). For the reasons

stated in the Magistrate Judge’s R&R, as well as this Order denying relief, the

Court concludes that Buckley’s petition fails to satisfy this standard.

II. CONCLUSION

For the foregoing reasons, Buckley’s petition for habeas corpus is

DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this_12th day of October, 2021.

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

14