Wesley v. Vannoy

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

WENDELL WESLEY (#568647) CIVIL ACTION

VERSUS

DARREL VANNOY, ET AL NO. 19-00141-BAJ-EWD

RULING AND ORDER

Before the Court is a Petition for Writ of Habeas Corpus brought pursuant to

28 U.S.C. § 2254 filed by Petitioner Wendell Wesley. (Doe. 1). The Petition is opposed.

(Doc. 6). The Magistrate Judge has issued a Report and Recommendation,

recommending that the Court deny Petitioner's Petition for Writ of Habeas Corpus

as untimely. (Doc. 15). Petitioner objected to the Report and Recommendation (Doc.

16).

The Magistrate Judge’s ruling explained that a petitioner in state custody

must seek federal habeas relief within a year of his conviction becoming final. 28

U.S.C. § 2244(d)(1)(A). A conviction becomes final “when the availability of direct

appeal to the state courts has been exhausted and the time for filing a petition for a

writ of certiorari has elapsed or a timely filed petition has been finally denied.”

Roberts v. Cockrell, 319 F.3d 690, 693 (6th Cir. 2008). A properly filed application for

state habeas rehef or other collateral review tolls this time period. Jackson v. Davis,

933 F.3d 408, 410 (5th Cir. 2019).

Here, Petitioner’s conviction became final on February 19, 2013. He filed his

post-conviction relief application one hundred ninety days later on August 28, 2013.

The state trial court denied his post-conviction relief application on March 9, 2015.

The Louisiana First Circuit Court of Appeals denied review on October 25, 2015, and

the Louisiana Supreme Court ultimately denied review on March 24, 2017.

Petitioner then waited a total of seven hundred ten days before filing his federal

habeas application with this Court on March 4, 2019. As a result, Petitioner’s

application for post-conviction relief is untimely because a total of 900 un-tolled days

passed before it was filed with this Court. However, the analysis does not end here.

The Court must inquire about whether Petitioner is entitled to either statutory or

equitable tolling.

The facts of this case show that Petitioner is not entitled to statutory tolling

because the failure of a state court to provide notice of its rulings on requests for relief

from state convictions generally implicates equitable tolling. See Phillips v. Donnelly,

216 F.3d 508 (5th Cir, 2000); Critchley v. Thaler, 586 F.3d 318, 318 n.3 (5th Cir. 2009)

(“when the state fails to provide notice of its ruling on a state habeas petition to the

affected petitioner as is required by Texas law, equitable tolling rules govern that

situation.”).

The Court agrees with the Magistrate Judge’s analysis that Petitioner is not

entitled to equitable tolling because he did not act with reasonable diligence. (Doc.

16, p.7). The United States Court of Appeals for the Fifth Circuit requires that a

holistic analysis be conducted when determining whether equitable tolling is

warranted. See Diggs v. Vannoy, 840 F. App’x. 779, 781 (6th Cir. 2021). (Equitable

tolling is “discretionary,” “does not lend itself to bright-line rules,” and “turns on the

facts and circumstances of a particular case.”) Fisher v. Johnson, 174 F.3d 710, 713

(5th Cir. 1999 (quoting Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998)). The

Fifth Circuit determined that “a petitioner seeking equitable tolling must

demonstrate that he pursued the [habeas corpus relief] process with diligence and

alacrity both before and after receiving notification that his state petition was

denied.” Diggs v. Vannoy, 840 F. App’x. 779, 781 (5th Cir. 2021). “The promptness

and frequency of inquiry into the status of a petitioner’s case provides guidance

regarding when tolling may be warranted.” Brown v. Vannoy, No. CV 17-0314-JWD-

EWD, 2021 WL 4074798, at *4 (M.D. La. Aug. 6, 2021), report and recommendation

adopted, No. CV 17-0314-JWD-EWD, 2021 WL 4066989 (M.D. La. Sept. 7, 2021). In

Hardy v. Quaterman, 577 F.3d 596, 599 (6th Cir. 2009), for example, the Fifth Circuit

found a petitioner acted with reasonable diligence when he waited two months to file

his state habeas petition. However, in Stroman v. Thaler, 603 F.3d 299, 302-303 (5th

Cir. 2010), the Fifth Circuit concluded that a petitioner did not act with reasonable

diligence when he waited seven months to file his state habeas petition. Moreover,

the Fifth Circuit found a petitioner also showed reasonable diligence, although he

waited eleven months before filing his state habeas petition when he made four

inquiries to the state court about its delay and contacted the federal court about his

federal petition seventeen days after he learned of the state court’s ruling. Williams

v. Thaler, 400 F.App’x 886, 891 (5th Cir. 2010).

Here, however, the Court agrees that Petitioner did not act with reasonable

diligence. Petitioner waited one hundred ninety days to file his state habeas petition;

fifty-four days after receiving notice to file his federal habeas petition; and only

checked the status of his pending application one time over three years after it was

filed. (Doc. 15, p. 9).

Accordingly, Petitioner is not entitled to equitable tolling regarding his

untimely federal habeas application because he failed to exercise reasonable diligence

by delaying the filing his state habeas petition and he failed to make timely inquiries

about the status of the Louisiana Supreme Court’s ruling.

Having carefully considered the underlying Petition, the Motion at issue, and

related filings, the Court APPROVES the Magistrate Judge’s Report and

Recommendation, and ADOPTS it as the Court’s opinion herein.

Accordingly,

IT IS ORDERED that Petitioner's application for habeas corpus relief is

DENIED, as untimely, and DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that a certificate of appealability be DENIED

if Petitioner seeks to pursue an appeal.

Baton Rouge, Louisiana, this 308y,, of March, 2022

JUDGE BRIAN A. J ON

UNITED STATES ICT COURT

MIDDLE DISTRICT OF LOUISIANA