‘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.”
How later courts described this case
- ‘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.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
KENDRICK CHRISTMAS #585115) CIVIL ACTION
VERSUS
DARREL VANNOY, ET AL NO, 18-00691-BAJ-EWD
RULING AND ORDER
Before the Court is a Writ of Habeas Corpus brought pursuant to
28 U.S.C. § 2254 filed by Petitioner Kendrick Christmas. (Doc. 1). The Petition is
opposed. (Doc. 6). The Magistrate Judge has issued a Report and
Recommendation recommending that the Court deny Petitioner’s Writ as
untimely. (Doc. 15). Petitioner objected to the Report and Recommendation (Doc. 16).
Upon de novo review of Petitioner's habeas application and related papers
submitted in this Court, the underlying state court record, and the evidence
developed in state court and in these federal proceedings, the Court approves and will
adopt substantially all of the R&R as its opinion in this matter, as set forth herein.
In the Recommendation, the Magistrate Judge acknowledged that a prisoner
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
finaliy denied.” Roberts v. Cockrell, 319 F.3d 690, 698 (5th Cir. 2003). A properly
filed application for state habeas relief or other collateral review tolls this time period.
Jackson v. Davis, 933 F.3d 408, 410 (th Cir. 2019).
Here, Petitioner filed a motion for appeal on June 20, 2011. (Doe. 7, p. 126).
His direct appeal to the Louisiana First Circuit Court of Appeal was filed on
December 12, 2011. (Doc. 12, p. 279-308). The appeal was denied on June 8, 2012.
(Doc. 1, p. 1). Petitioner’s writ application was filed with the Louisiana Supreme
Court on July 8, 2012. (Doe. 12, p. 260-277). The Louisiana Supreme Court denied
Petitioner’s writ application on January 25, 2013. (Doe. 11, p. 34). Petitioner did not
seek further review, thus the conviction became final on April 25, 2013. Petitioner
filed his federal application for post-conviction relief (PCR) on December 10, 2013.
On May 21, 2015 his PCR application was denied. On June 19, 2015, he timely filed
a notice of intent to file a writ application for denial of his PCR application. On
September 8, 2015, Petitioner's writ was denied. Petitioner was permitted to file a
new writ application on November 9, 2015 that was subsequently denied on January
14, 2016. (Doc. 12, p. 29).! On February 12, 2016, Petitioner filed his writ application
with the Louisiana Supreme Court. It was denied on August 4, 2017. Petitioner filed
the instant application on July 10, 2018, nearly one year later.
The Court agrees that Petitioner is not entitled to statutory tolling. The
United States Court of Appeals for the Fifth Circuit has recognized that a petitioner
1 'The Louisiana First Circuit Court of Appeal denied Petitioner’s application for failure
include “a filed-stamped copy of the application for postconviction relief, the State’s answer,
if any, the trial transcript, pertinent court minutes, and any other portions of the district
court record that might support the claims raised in the application for postconviction relief.”
while also granting him leave to amend his application. (Doc. 11, p. 41).
is entitled to statutory tolling if he was “prevented from filing” his habeas application
due to an “impediment. . . created by State action in violation of the Constitution or
laws of the United States.” 28 U.S.C. § 2244(d)(1)(B). Clarke v. Rader, 721 F.3d 339,
342 (oth Cir. 2013). However, the failure of a state court to provide notice of its
rulings on requests for relief from state convictions generally implicates equitable
tolling.2 See Phillips v. Donnelly, 216 F.3d 508 (Sth Cir. 2000); Critchley v. Thaler,
586 F.3d 318, 318 0.3 (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.”).
Further, 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 Fifth Circuit requires that a comprehensive analysis must be
taken when determining whether equitable tolling is warranted.
See Diggs v. Vannoy, 840 F. App’x. 779, 781 (5th Cir. 2021). (Equitable tolling is
“discretionary;” it “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
(Sth Cir. 1999 (quoting Davis v. Johnson, 158 F.8d 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
* In Phillips, petitioner did not receive notice of the Louisiana Supreme Court’s ruling on his
habeas petition until June 18, 2018, nearly a year after it was issued on August 4, 2017.
(Doc. 1-1, p. &.
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 (5th 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 held that a petitioner also showed reasonable diligence, despite
having 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, the Court agrees that Petitioner did not act with reasonable diligence.
Although, “some extraordinary circumstance stood in his way and prevented timely
filing.” Jackson v. Davis, 933 F.8d 408, 411 (5th Cir. 2019) (petitioner did not receive
notice that his state habeas petition was denied for eighteen month). Christmas
waited seven months to file his state habeas petition after his conviction became final.
(Doc. 12, pp. 83-88). Petitioner then waited twenty-two days after receiving notice of
the Louisiana Supreme Court's opinion before filing his federal habeas petition. (Doc.
1-5, pp. 53-60; Doc. 12, pp. 83-88). He did not inquire about the status of his writ with
the Louisiana Supreme Court until thirteen months after filing. (Doc. 15, p. 7). And
upon recelving a response seven days later, he did not inquire again for sixteen
months. (Doc. 1-3, p.5). In total, 566 days of untolled time passed prior to Petitioner
filing his federal habeas application with this Court.
Accordingly, Petitioner is not entitled to equitable tolling for his untimely
federal habeas application because he failed to exercise reasonable diligence by
delaying the filing his state habeas petition and by failing to make timely inquiries
about the status of the Louisiana Supreme Court’s ruling.
Still, however, the Court acknowledges that jurists of reason could disagree
with its analysis that Petitioner’s application is untimely, or (at least) would
“conclude the issues presented are adequate to deserve encouragement to proceed
further.” Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005). Accordingly, the Court
will not adopt that portion of the R&R that recommends denying a Certificate of
Appealability as to the timeliness of Petitioner’s application. Rather, having
determined that Petitioner has made a “made a substantial showing of the denial of
a constitutional right,” 28 U.S.C. § 2253(c)(2), the Court shall issue a certificate of
appealability as to this issue.
In sum, having carefully considered the matter, the Court APPROVES IN
PART the Magistrate Judge’s Report and Recommendation (Doc. 16) and ADOPTS
it as the Court’s opinion as set forth herein.
Accordingly,
IT IS ORDERED that Petitioner’s application for habeas corpus relief is
DENIED, and the above captioned action be and is hereby DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 2253(c), a
certificate of appealability be and is hereby issued as to the timeliness of Petitioner’s
Writ of Habeas Corpus.
ae
Baton Rouge, Louisiana, this day of March, 2022
a SSS if
Q. 7
JUDGE BRIAN A. JAGKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA