“[A] conviction becomes final when the time for seeking further direct review in the state court expires.”
How later courts described this case
- “[A] conviction becomes final when the time for seeking further direct review in the state court expires.”
Written by the judges who cited it.
The opinion
.UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KEVIN WILSON CIVIL ACTION
VERSUS NO. 23-7325
CRIMINAL DISTRICT COURT SECTION “G”(4)
ORLEANS PARISH
ORDER AND REASONS
Before the Court are Petitioner Kevin Wilson’s (“Wilson”) objections1 to the Report and
Recommendation of the United States Magistrate Judge assigned to this case.2 Wilson, a state
prisoner incarcerated at the Raymond Laborde Correctional Center in Cottonport, Louisiana, filed
a petition for writ of habeas corpus under 28 U.S.C. § 2254.3 The Magistrate Judge recommended
that this Court dismiss the petition with prejudice because it was not timely filed.4 Wilson objects
to the Magistrate Judge’s recommendation.5 After reviewing the petition, the motion, the State’s
response, the Magistrate Judge’s Report and Recommendation, Wilson’s objections, the record,
and the applicable law, the Court overrules Wilson’s objections, adopts the Magistrate Judge’s
recommendation, and dismisses this action with prejudice.
1 Rec. Docs. 12, 13.
2 Rec. Doc. 11.
3 Rec. Doc. 3.
4 Rec. Doc. 11.
5 Rec. Docs. 12, 13.
1
I. Background
A. Factual Background
On November 28, 2018, Wilson was charged by a Bill of Information in the Orleans Parish
Criminal District Court with one count of simple burglary.6 On November 5, 2019, Wilson entered
a plea of guilty to simple burglary and was sentenced by the state trial court to serve 12 years in
prison.7 At the same hearing, the State filed a multiple offender bill charging Wilson as a second
felony offender.8 Wilson immediately pleaded guilty to the multiple offender bill, and the state
trial court revoked the prior sentence and resentenced Wilson to serve 12 years in prison at hard
labor without benefit of probation or suspension of sentence.9 Wilson’s conviction and sentence
became final 30 days later, on December 5, 2019, because he did not seek reconsideration of the
sentence or move for leave to appeal.10
On July 10, 2020, Wilson filed an application for post-conviction relief to the state trial
court.11 On July 29, 2020, the state trial court denied the application as meritless.12 On September
24, 2020, the Louisiana Fourth Circuit Court of Appeal denied Wilson’s related writ application
6 Rec. Doc. 7-1 at 37 (Bill of Information).
7 Id. at 7 (Plea and Sentencing Minutes).
8 Id. at 35 (Multiple Offender Bill).
9 Id. at 7–8 (Plea and Sentencing Minutes).
10 La. Code Crim. P. art. 914; Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008) (“[A] conviction becomes
final when the time for seeking further direct review in the state court expires.”) (quoting Roberts v. Cockrell, 319
F.3d 690, 694 (5th Cir. 2003)).
11 Rec. Doc. 7-3 at 20–38 (Application for Post-Conviction Relief).
12 Id. at 13–15 (Trial Court Judgment).
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without stated reasons.13 On March 16, 2021, the Louisiana Supreme Court also denied Wilson’s
writ application.14
More than two years and seven months later, on October 23, 2023, Wilson submitted a
Uniform Motion to Correct an Illegal Sentence to the state trial court, alleging that his sentence
was illegal because the bill of information did not include the name of the victim or all elements
of the offense charged.15 On October 31, 2023, the state trial court denied the motion as meritless
and noting that Wilson had already exhausted his avenues of post-conviction collateral review.16
On December 14, 2023, the Louisiana Fourth Circuit granted Wilson’s related writ application and
denied relief.17 The Louisiana Fourt Circuit found that Wilson’s motion was a second application
for post-conviction relief which was successive under Louisiana Code of Criminal Procedure
article 930.4 and otherwise untimely under Louisiana Code of Criminal Procedure article 930.8.18
Wilson did not seek review of this ruling from the Louisiana Supreme Court.
On December 11, 2023, Wilson filed a petition for writ of habeas corpus in this Court.19
The original filing was marked deficient by the Clerk of Court.20 Wilson cured the deficiencies,
and the petition was accepted for filing on January 8, 2024.21 Wilson filed a supplemental brief on
13 Id. at 1 (4th Cir. Order, 2020-K-0464).
14 State v. Wilson, 312 So. 3d 1088 (La. 2021); Rec. Doc. 7-6 at 1–2.
15 Rec. Doc. 7-4 at 13–18 (Uniform Motion to Correct an Illegal Sentence).
16 Id. at 9–10 (Trial Court Judgment).
17 State v. Wilson, No. 2023-K-0762, 2023 WL 8641929, at *2 (La. App. 4th Cir. Dec. 14, 2023); Rec. Doc.
7-4 at 1–5 (4th Cir. Order, 2023-K-0762).
18 Id.
19 Rec. Doc. 1.
20 Rec. Doc. 2.
21 Rec. Doc. 3.
3
February 1, 2024.22 The State filed a response on February 5, 2024, arguing that the petition was
not timely filed and state court review of the claims was not fully exhausted.23 Wilson did not file
a response to the State’s opposition although he was given an opportunity to do so.
B. Report and Recommendation Findings
The Magistrate Judge recommended that the petition be dismissed with prejudice as it was
not timely filed.24 The Magistrate Judge noted that under Subsection A of the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), a petitioner must file a habeas corpus petition
within one year of the date his conviction became final.25 The Magistrate Judge determined that
Wilson’s conviction became final on December 5, 2019.26 Wilson had until December 7, 2020 to
file a federal habeas petition, unless the statute of limitations was extended through tolling.27
The Magistrate Judge examined statutory tolling under 28 U.S.C. § 2244(d)(2), which
establishes 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.”28 The Magistrate Judge noted the filing period ran
without interruption for 217 days, until July 10, 2020, when Wilson filed a post-conviction relief.29
The Magistrate Judge further noted that the one-year filing period was suspended during the
22 Rec. Doc. 6.
23 Rec. Doc. 5.
24 Rec. Doc. 11.
25 Id. at 7.
26 Id.
27 Id.
28 Id.
29 Id. at 9.
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pendency of Wilson’s state court proceedings through March 16, 2021, when the Louisiana
Supreme Court denied his related writ application.30 The period began to run again on March 17,
2021, and did so for the remaining 148 days without interruption through August 11, 2021, when
it expired.31 Therefore, the Magistrate Judge found Wilson’s December 11, 2023 federal
application to be untimely.32
Next, the Magistrate Judge considered whether Wilson is entitled to equitable tolling.33
The Supreme Court has held that the AEDPA’s statute of limitations may be equitably tolled where
the petitioner shows both that (1) he has been pursuing his rights diligently, and (2) some
extraordinary circumstance stood in his way and prevented timely filing.34 The Magistrate Judge
noted that Wilson had not presented any basis for equitable tolling.35 The Magistrate Judge also
noted that a petitioner may overcome the AEDPA’s statute of limitations by way of a claim of
actual innocence, but Wilson did not allege such a claim.36 Therefore, the Magistrate Judge
concluded that Wilson’s federal application is untimely, and recommended that the petition be
dismissed with prejudice.37
30 Id.
31 Id.
32 Id. at 10.
33 Id.
34 Id. (citing Holland v. Florida, 560 U.S. 631, 649 (2010)).
35 Id. at 11.
36 Id. at 11 n.29.
37 Id. at 12.
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II. Objections
In objection to the Report and Recommendation, Wilson asserts that he has not received a
copy of the state record.38 He also asserts that he could not have sought review of the Louisiana
Fourth Circuit’s December 14, 2023 ruling to the Louisiana Supreme Court because he did not
receive a copy of the Louisiana Fourth Circuit’s opinion.39 Wilson also argues the merits of the
Motion to Correct an Illegal Sentence that he filed in state court.40 He argues that there is no time
limitation for filing such a motion.41
In the supplemental objection filed, Wilson argues that the state trial court erred in failing
to give him a competency hearing.42 He requests that this Court remand the case to the Criminal
District Court for the Parish of Orleans for a competency hearing.43
III. Standard of Review
In accordance with Local Rule 73.2, this case was referred to the Magistrate Judge to
provide a Report and Recommendation. A district judge “may accept, reject, or modify the
recommended disposition” of a Magistrate Judge on a dispositive matter.44 The district judge must
“determine de novo any part of the [Report and Recommendation] that has been properly objected
38 Rec. Doc. 12 at 1–2.
39 Id. at 2.
40 Id. at 3–4.
41 Id. at 2.
42 Rec. Doc. 13 at 1.
43 Id. at 2.
44 Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).
6
to.”45 A district court’s review is limited to plain error of parts of the report which are not properly
objected to.46
IV. Law and Analysis
A. AEDPA Statute of Limitations
The AEDPA establishes a one-year statute of limitations for the filing of habeas corpus
applications, which shall run from the latest of:
A. the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review;
B. the date on which the impediment to filing an application created by State action
in violation of the Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State actions;
C. the date on which the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or
D. the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.47
The Magistrate Judge applied the limitation period established by Subsection A. Wilson
does not object to this determination or argue that any other subsection should apply. Therefore,
the Court considers whether the federal application is timely under Subsection A.
B. Timeliness Under Subsection A
The Magistrate Judge found that the conviction became final for AEDPA purposes on
December 5, 2019.48 Again, Wilson does not object to this finding. Therefore, Wilson’s one year-
45 Fed. R. Civ. P. 72(b)(3).
46 See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objection from ten to fourteen days).
47 28 U.S.C. § 2244(d)(1).
48 Rec. Doc. 24 at 5.
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period for seeking federal habeas corpus review with respect to the prior convictions expired on
December 7, 2020, unless that deadline was extended through tolling.
1. Statutory Tolling
The AEDPA provides for statutory tolling 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.”49 The Fifth Circuit “has adopted the ‘narrow’ view of the phrase
‘properly filed application’ in section 2244(d)(2), construing the phrase to require that the state
post-conviction motion or petition comply with rules governing the time and place of filing.”50
The AEDPA filing period began to run on December 6, 2019, the day after Wilson’s
conviction became final. The period ran without interruption for 217 days, until July 10, 2020,
when Wilson filed his first state court post-conviction application. The AEDPA one-year filing
period was suspended during the pendency of Wilson’s state court proceedings through March 16,
2021, when the Louisiana Supreme Court denied his related writ application. The period began to
run again on March 17, 2021, and did so for the remaining 148 days without interruption, until
August 11, 2021, when the period expired. Therefore, the December 11, 2023 federal petition was
filed two years and four months after the AEDPA one-year filing period expired on August 11,
2021.
2. Equitable Tolling
The United States Supreme Court has held that, in rare circumstances where a petitioner’s
habeas corpus application would be otherwise untimely, the AEDPA’s statute of limitations may
49 28 U.S.C. § 2255(d)(2).
50 Williams v. Cain, 217 F.3d 303, 307 n.4 (5th Cir. 2000).
8
be subject to equitable tolling.51 To establish entitlement to equitable tolling, a petitioner must
show that: “(1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance
stood in his way and prevented timely filing.”52 “[E]quitable 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.”53 A petitioner bears the burden of establishing
entitlement to equitable tolling and “must demonstrate rare and exceptional circumstances
warranting application of the doctrine.”54
Wilson has not shown that any extraordinary circumstance prevented him from filing his
petition within the limitations period. Construed broadly, Wilson appears to suggest that the State
prevented him from filing because he did not receive a copy of the state record.55 As an initial
matter, this argument appears unfounded because Wilson attached portions of the state record to
his application for post-conviction relief.56 The lack of access to state court records by an inmate
does not present the “rare and exceptional” circumstances that would warrant equitable tolling.57
51 Holland, 560 U.S. at 645.
52 Id. at 649 (internal citations and quotation marks omitted).
53 Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000) (internal quotations and citation omitted).
54 Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002).
55 Rec. Doc. 12 at 2.
56 Rec. Doc. 7-3 at 39–51.
57 See Tiner v. Treon, 232 F.3d 210 (5th Cir. 2000) (holding allegations that the State, the district attorney,
and his attorney on direct appeal would not provide inmate a copy of his state records did not constitute rare and
exceptional circumstances warranting equitable tolling); Roughley v. Cockrell, No. 01-11378, 2002 WL 1899622 (5th
Cir. July 12, 2002) (unpublished) (rejecting a claim for equitable tolling based on an inmate’s unfulfilled request for
state court records); Cofer v. Johnson, No. 99-40878, 2000 WL 1029201 (5th Cir. July 14, 2000) (unpublished)
(rejecting a claim for equitable tolling based on delay in receiving a copy of state court records);
9
Wilson has not shown that the State actively misled him or prevented him from filing a timely
federal habeas petition.
3. Actual Innocence
In McQuiggin v. Perkins, the United States Supreme Court held that “actual innocence, if
proved, serves as a gateway through which a [habeas] petitioner may pass whether the impediment
is a procedural bar . . . or expiration of the statute of limitations.”58 The Court cautioned, however,
that this exception “applies to a severely confined category: cases in which new evidence shows
‘it is more likely than not that no reasonable juror would have convicted [the petitioner].’”59 The
Supreme Court has explained:
It is not the district court’s independent judgment as to whether reasonable doubt
exists that the standard addresses; rather the standard requires the district court to
make a probabilistic determination about what reasonable, properly instructed
jurors would do. Thus, a petitioner does not meet the threshold requirement unless
he persuades 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.60
Wilson does not argue that he is actually innocent of the crime for which he was convicted,
nor does he present any new evidence to establish his innocence. Therefore, the “actual innocence”
exception is not applicable here.
V. Conclusion
For the foregoing reasons, the Court finds that the petition is time-barred. Accordingly,
IT IS HEREBY ORDERED that Petitioner Kevin Wilson’s objections are
OVERRULED;
58 McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).
59 Id. at 395 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
60 Schlup, 513 U.S. at 329.
10
IT IS FURTHER ORDERED that the Court ADOPTS the Magistrate Judge’s
recommendation and Petitioner Kevin Wilson’s petition for issuance of a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254 is DISMISSED WITH PREJUDICE.
NEW ORLEANS, LOUISIANA, this 9th day of October, 2024.
NANNETTE J G ETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
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