Robertson

EASTERN DISTRICT OF LOUISIANA

DAN ROBERTSON CIVIL ACTION

VERSUS NO. 25-851

MELANIE MOSS, WARDEN SECTION: “P”(1)

REPORT AND RECOMMENDATION

This matter was referred to this United States Magistrate Judge for the purpose of

conducting a hearing, including an evidentiary hearing, if necessary, and submission of proposed

findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and

(C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States

District Courts. Upon review of the record, the Court has determined that this matter can be

disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Therefore, for all of the

following reasons, IT IS RECOMMENDED that the petition be DISMISSED WITH

PREJUDICE as time-barred.

Petitioner, Dan Robertson, is a state prisoner incarcerated at the Claiborne Parish Detention

Center in Homer, Louisiana. Robertson was charged with attempted simple burglary.1 After a trial,

the jury found Robertson guilty as charged.2 On March 16, 2022, the trial court sentenced

Robertson to a term of imprisonment of six years at hard labor.3 The state filed a multiple bill

charging Robertson as a third felony offender.4 On March 23, 2022, the trial court adjudicated

Robertson as a third felony offender, vacated his sentence and sentenced Robertson to a term of

1 Rec. Doc. 10 at 3, Bill of Information dated January 26, 2021.

2 Id. at 35, minute entry dated February 1, 2022; id. at 46, verdict dated February 1, 2022.

3 Id. at 99, minute entry dated March 16, 2022; id. at 100, Uniform Sentencing Commitment Order dated

March 16, 2022; id. at 172–83, sentencing transcript of March 16, 2022.

4 Id. at 102–03, multiple bill dated March 16, 2022.

suspension of sentence.5

On March 29, 2023, the Louisiana Fifth Circuit Court of Appeal affirmed Robertson’s

conviction and sentence.6 Robertson did not seek further review from the Louisiana Supreme

Court.

In November 2023, Robertson filed a motion for request for production of documents.7

The state district court granted the motion in part and ordered that Robertson be provided with

copies of the trial and sentencing transcripts.8 The clerk of court advised Robertson that his

transcript requests were sent to the court reporter.9 On December 21, 2023, Robertson again

requested the transcripts as well as additional documents.10 The clerk of court advised that it did

not maintain the records and/or they were not part of the record.11 On January 19, 2024, the court

reporter provided Robertson with the transcripts of his original sentencing and multiple bill

sentencing.12 On February 11 and 27, 2024, Robertson again requested a copy of his trial

transcript.13 On March 21, 2024, Robertson was provided with a copy of the trial transcript.14

5 Id. at 106, minute entry dated March 23, 2022; id. at 184–95, habitual offender hearing and sentencing

transcript of March 23, 2022.

6 State v. Robertson, 360 So. 3d 582 (La. App. 5th Cir. 2023); Rec. Doc. 10 at 127–44.

7 Rec Doc. 10 at 145–46, Motion for Production of Particularized Documents signed November 24, 2024.

8 Id. at 149, Order dated December 7, 2023; id. at 151, Order dated December 11, 2023.

9 Id. at 157.

10 Id. at 166, letter dated December 21, 2023.

11 Id. at 170, letter dated December 28, 2023.

12 Id. at 171, letter dated January 19, 2024.

13 Id. at 196, letter dated February 11, 2024; id. at 204–12, letter dated February 27, 2024.

14 Id. at 214, letter dated March 21, 2024.

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2024, the state district court denied relief.16 On November 14, 2024, the Louisiana Fifth Circuit

denied Robertson’s related writ application.17 On February 19, 2025, the Louisiana Supreme Court

denied Robertson’s writ application, finding “Applicant fails to show that he received ineffective

assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984).”18

Two months later, on April 18, 2025, Robertson filed his federal application seeking habeas

corpus relief claiming: (1) ineffective assistance of counsel in pretrial and trial proceedings; (2)

ineffective assistance of counsel for failing to object to the admission into evidence of a bandana

found at the crime scene; and (3) the state courts’ denial of his ineffective assistance of trial counsel

claims violated due process and equal protection.19

The state responds that Robertson’s petition should be dismissed as untimely.20 Robertson,

in his reply brief, claims that he is entitled to equitable tolling due to COVID-19 pandemic

restrictions at the correctional facility.21

I. General Standards of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-

132, 110 Stat. 1214, comprehensively revised federal habeas corpus legislation, including 28

15 Rec. Doc. 10 at 351–64, Uniform Application for Post-Conviction Relief signed June 6, 2024 (stamped

June 12, 2024).

16 Id. at 464–66, Order of July 25, 2024.

17 State v. Robertson, No. 224-KH-473, 2024 WL 4812883 (La. App. 5th Nov. 14, 2024); Rec. Doc. 481–

87.

18 State v. Robertson, 400 So. 3d 911 (La. 2025); Rec. Doc. 1055–56.

19 Rec. Doc. 3.

20 Rec. Doc. 11 at 7–9.

21 Rec. Doc. 12 at 3–5.

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filed after that date. Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh v.

Murphy, 521 U.S. 320 (1997)). For purposes of applying the AEDPA, Robertson’s petition is

deemed filed on April 18, 2025.23 The threshold questions in habeas review under the amended

statute are whether the petition is timely and whether petitioner’s claims were adjudicated on the

merits in state court; i.e., the petitioner must have exhausted state court remedies and must not be

in “procedural default” on a claim. Nobles v. Johnson, 127 F.3d 409, 419-20 (5th Cir. 1997) (citing

28 U.S.C. § 2254(b), (c)).

II. Statute of Limitations

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

of limitations for petitioners seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254.

Specifically, the AEDPA provides:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a State court. The limitation period 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 action;

22 The AEDPA was signed into law on that date and did not specify an effective date for its non-capital

habeas corpus amendments. Absent legislative intent to the contrary, statutes become effective at the moment they are

signed into law. United States v. Sherrod, 964 F.2d 1501, 1505 (5th Cir. 1992).

23 The Fifth Circuit has recognized that a “mailbox rule” applies to pleadings, including habeas corpus

petitions filed after the effective date of the AEDPA, submitted to federal courts by prisoners acting pro se. Under this

rule, the date when prison officials receive the pleading from the inmate for delivery to the court is considered the

time of filing for limitations purposes. Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999); Spotville v. Cain, 149

F.3d 374, 378 (5th Cir. 1998) (mailbox rule applies to determine if AEDPA applies even if filing fee is paid later);

Cooper v. Brookshire, 70 F.3d 377, 379 (5th Cir. 1995). Robertson dated his petition April 18, 2025, which is the

earliest possible date officials could have received the pleadings him. Rec. Doc. 3 at 12.

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(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.

28 U.S.C. § 2244(d)(1).

In its response, the state argues that Subsection A is controlling in the instant case.24

Regarding that subsection, the United States Fifth Circuit Court of Appeals has explained:

The statute of limitations for bringing a federal habeas petition challenging a state

conviction begins to run on “the date on which the [state] judgment became final

by the conclusion of direct review or the expiration of the time for seeking such

review.” 28 U.S.C. § 2244(d)(1)(A). When a habeas petitioner has pursued relief

on direct appeal through his state’s highest court, his conviction 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. Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003).

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

In this case, Robertson’s conviction became final on April 28, 2023, 30 days after the

Louisiana Fifth Circuit affirmed his conviction on direct appeal, when Robertson did not file for

review in the Louisiana Supreme Court. La. Sup. Ct. Rule X § 5 (setting a 30-day period for

seeking review in the Louisiana Supreme Court); La. Code Crim. P. art. 922 (addressing finality

of appeal judgment); 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.”). The AEDPA one-

year limitations period commenced on that date and expired one year later, on April 29, 2024.25

24 Rec. Doc. 11 at 8.

25 Because the 365th day of the limitations period fell on a Sunday, Robertson’s deadline was extended

through Monday, April 29, 2024. See Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998) (“We hold that

[Fed.R.Civ.P.] 6(a) applies to the computation of the one year limitation period in § 2244(d) of AEDPA.”); Fed. R.

Civ. P. 6(a) (if the last day of an applicable period is a Saturday, a Sunday, a legal holiday, or a day when the clerk’s

office is inaccessible, the period runs until the end of the next day that is not one of those days).

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be dismissed as untimely unless the statute of limitations period was extended through tolling.

The Court first considers statutory tolling. Regarding the statute of limitations, the AEDPA

expressly provides: “The 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.” 28 U.S.C. § 2244(d)(2). But that

provision is subject to a significant limitation: it does not apply to every type of post-conviction

filing; rather, it “applies only to those state post-conviction filings that seek reexamination of

the relevant state-court conviction or sentence.” Kholi v. Wall, 582 F.3d 147, 151 (1st Cir.

2009) (emphasis added). See also Brian R. Means, Federal Habeas Manual § 9A:74 (June 2025

Update) (“[A] state court application that does not seek judicial review of a judgment or provide

the state court with authority to order relief from a judgment generally will not toll the limitations

period.”).

Here, Robertson had no such applications pending in the state courts during his one-year

period. Instead, his only state court filings during that one-year period were his various requests

for production of documents. Those requests did not seek such reexamination of his conviction or

sentence; rather, they were merely preliminary steps taken in preparation of an anticipated filing

which would seek such a reexamination at some indeterminate time in the future. See, e.g., Wall

v. Kholi, 562 U.S. 545, 556 n.4 (2011) (noting that “a motion for post-conviction discovery or a

motion for appointment of counsel ... generally are not direct requests for judicial review of a

judgment and do not provide a state court with authority to order relief from a judgment”). A

petitioner’s efforts to obtain copies of documents and transcripts from the state courts simply do

not constitute other collateral review for purposes of the AEDPA statutory tolling calculation. See

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Westlaw) (motion for transcript copies is not “other collateral review” for tolling purposes); Brown

v. Cain, 112 F. Supp. 2d 585, 587 (E.D. La. 2000), aff’d, 239 F.3d 365 (5th Cir. 2000); Gerrets v.

Futrell, No. 01-3080, 2002 WL 63541 (E.D. La. Jan. 16, 2002).

Of course, on June 6, 2024, Robertson finally filed his application for post-conviction relief

seeking reexamination of his conviction. However, that application is of no consequence under §

2244(d)(2), because Robertson’s federal limitations period had already expired more than a month

prior on April 29, 2024. Therefore, his application could not possibly afford him any tolling

benefit. See Madden v. Thaler, 521 F. App’x 316, 320 (5th Cir. 2013); Scott v. Johnson, 227 F.3d

260, 263 (5th Cir. 2000); Magee v. Cain, No. 99-3867, 2000 WL 1023423, at *4 (E.D. La. Jul. 24,

2010) (citing Williams v. Cain, No. 00-536, 2000 WL 863132, at *2 (E.D. La. June 27, 2000)),

aff’d, 253 F.3d 702 (5th Cir. 2001). That is so because once the federal limitations period expired,

“[t]here was nothing to toll.” Butler, 533 F.3d at 318.

For all these reasons, Robertson is not entitled to statutory tolling.

The Court next considers equitable tolling. The United States Supreme Court has expressly

held that the AEDPA’s statute of limitations is subject to equitable tolling. Holland v. Florida, 560

U.S. 631, 645 (2010). That said, a petitioner bears the burden of proof to establish entitlement to

equitable tolling, Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002), and, frankly, “equitable

tolling is unavailable in most cases....” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999);

accord Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998) (holding that the AEDPA’s statute of

limitations can be equitably tolled “in rare and exceptional circumstances”). Specifically, “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 circumstance stood in his way and prevented timely

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tolling applies principally where the defendant actively misleads the plaintiff about the cause of

action or prevents the plaintiff from asserting his rights in some extraordinary way.” Jones v.

Lumpkin, 22 F. 4th 486, 490 (5th Cir. 2022) (citations omitted). Regarding the two prongs of the

Holland test, the United States Supreme Court has explained:

[W]e have expressly characterized equitable tolling’s two components as

“elements,” not merely factors of indeterminate or commensurable weight. Pace

v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)

(“Generally, a litigant seeking equitable tolling bears the burden of establishing two

elements”). And we have treated the two requirements as distinct elements in

practice, too, rejecting requests for equitable tolling where a litigant failed to satisfy

one without addressing whether he satisfied the other. See, e.g., Lawrence v.

Florida, 549 U.S. 327, 336-337, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) (rejecting

equitable tolling without addressing diligence because habeas petitioner fell “far

short of showing ‘extraordinary circumstances’ ”); Pace, supra, at 418, 125 S.Ct.

1807 (holding, without resolving litigant’s argument that he had “satisfied the

extraordinary circumstance test,” that, “[e]ven if we were to accept [his argument],

he would not be entitled to relief because he has not established the requisite

diligence”).

Menominee Indian Tribe of Wisconsin v. United States, 577 U.S. 250, 256 (2016).26 Here,

Robertson has not met either prong.

As indicated, Robertson claims that he is entitled to equitable tolling because, due to

COVID-19 restrictions at the correctional facility at which he has been housed since April 8, 2022,

he was denied access to the law library and inmate counsel, and access to his legal materials was

delayed.27 He also appears to contend that he did not receive a copy of the appellate record until

26 Menominee Indian Tribe was not a habeas corpus case. However, its equitable tolling discussion is

expressly based on the Supreme Court’s interpretation of Holland; therefore, the reasoning therein is applicable to

habeas cases. See, e.g., Brian R. Means, Federal Habeas Manual § 9A:83 (June 2025 Update).

27 Rec. Doc. 12 at 3–4.

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that, as a result, he was delayed in filing his state application for post-conviction relief.

Initially, the purpose of the federal equitable tolling doctrine relates to the suspension of

the federal limitations period under the AEDPA, not state law filing deadlines for state court

pleadings. See Pace, 544 U.S. at 419; Davis, 158 F.3d at 811. Nevertheless, to the extent that

Robertson’s pleas to explain his delay in filing his application for post-conviction relief similarly

led to his tardiness in federal court, he has not established a basis for granting the extraordinary

remedy of equitable tolling of the AEDPA’s one-year filing period.

First, while Robertson claims he was denied assistance from inmate counsel, he candidly

admits that he briefly had the assistance of inmate counsel from March 2023 to June 2023, although

he does not mention whether he had any assistance thereafter.29 Regardless, prisoners have no

constitutional right to either an attorney or “inmate counsel” in state post-conviction proceedings.

See Martinez v. Johnson, 255 F.3d 229, 239 (5th Cir. 2001). Robertson provides no specific dates

or even specific instances when he was prevented from accessing the law library and his legal

materials. Robertson further provides no actual evidence “that lack of access to legal materials

actually prevented” him from filing either his application for post-conviction relief or his federal

petition for writ of habeas corpus earlier.30 Krause v. Thaler, 637 F.3d 558, 56162 (5th Cir. 2011)

(emphasis in original); accord Banks v. Hooper, No. 21-1788, 2024 WL 3100690, at *5 (E.D. La.

April 2, 2024), appeal dismissed, No. 24-30387 (5th Cir. Aug. 21, 2024). Nor is the mere existence

of the COVID-19 pandemic, without more, an “extraordinary circumstance.” United States v.

28 Id. at 4; Rec. Docs. 12-2, 12-3, 12-4, and 12-5.

29 Rec. Doc. 12 at 4 n. 2.

30 While Robertson claims that the process of obtaining his legal materials from the property store room was

“burdensome,” he also states “in general [it] had been timely.” Id. at 4.

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No. 20-CV-10064 (CS), No. 17-CR-364-2 (CS), 2021 WL 2456679, at *2 (S.D.N.Y. June 16,

2021).

The fact that Robertson did not receive a copy of his appellate record until November 2023

does not entitle him to equitable tolling. An inmate’s lack of access to his state court records does

not present an “exceptional circumstance” to warrant equitable tolling. See Cofer v. Johnson, 226

F.3d 643, 2000 WL 1029201, at *1 (5th Cir. 2000) (per curiam) (Table, Text in Westlaw) (rejecting

claim for equitable tolling based on delay in receiving a copy of state court records). Further,

Robertson was in possession of those records for more than five months prior to the expiration of

the AEDPA deadline. Yet, he delayed filing his state application for post-conviction relief until

June 2024, after the AEDPA deadline had expired. Even after denial of that application, Robertson

waited an additional two months to file his federal petition.

Finally, any claim that Robertson is entitled to equitable tolling due to his requests for trial

and sentencing transcripts is not supported by law. A delay in the receipt of a transcript of a

proceeding at which Robertson was present does not merit equitable tolling. Walker v. McCain,

No. 16-16170, 2017 WL 5197232, at *5 (E.D. La. Aug. 16, 2017) (citations omitted), adopted,

2017 WL 5177928 (E.D. La. Nov. 8, 2017). Moreover, the fact that Robertson did not obtain a

copy of his trial transcript until March 2024, did not prevent him from seeking post-conviction

relief earlier in state court or timely filing a habeas petition in federal court. See Schaffer v. Day,

No. 21-2341, 2022 WL 2232492, at *2 (E.D. La. May 31, 2022) (noting that there is no

requirement under Louisiana law to submit a transcript with a post-conviction application

(citations omitted)), adopted, 2022 WL 2208863 (E.D. La. June 21, 2022), appeal dismissed, No.

22-30452, 2022 WL 18448118 (5th Cir. Sept. 6, 2022). Robertson could have filed his state

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while his state court post-conviction proceeding was pending, Robertson could have timely filed

a protective federal habeas corpus petition and requested that the federal proceeding be stayed

while he pursued his state-court remedies. See, e.g., Pace, 544 U.S. at 416–17; Madden v. Thaler,

521 F. App’x 316, 321 (5th Cir. 2013). Although Robertson may have been unaware of these

options, a prisoner’s pro se status, lack of legal training, ignorance of the law and filing deadlines,

and even reliance on inmate counsel do not constitute rare and exceptional circumstances

warranting equitable tolling. See, e.g., Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir. 2002)

(“[N]either ‘excusable neglect’ nor ignorance of the law is sufficient to justify equitable tolling.”);

Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000) (“[P]roceeding pro se is not a ‘rare and

exceptional’ circumstance because it is typical of those bringing a § 2254 claim.”); Smallwood v.

Cain, No. 12-2812, 2013 WL 5757663, at *10 (E.D. La. Oct. 23, 2013) (“The fact that Smallwood

is not educated in the law or is reliant upon assistance from inmate counsel on post-conviction

does not warrant equitable tolling. In fact the United States Fifth Circuit has held that

circumstances such as lack of legal assistance in preparing post-conviction pleadings, ignorance

of the law, lack of knowledge of filing deadlines, and temporary denial of access to or inadequacy

of research materials or a prison law library are not sufficient to warrant equitable tolling.”

(citations omitted)).

Lastly, the Court notes that a petitioner can overcome the AEDPA’s statute of limitations

by asserting a convincing claim of “actual innocence” under McQuiggin v. Perkins, 569 U.S. 383

(2013). In McQuiggin, the United States Supreme Court held that “actual innocence, if proved,

serves as a gateway through which a petitioner may pass whether the impediment is a procedural

bar, as it was in Schlup[ v. Delo, 513 U.S. 298 (1995)] and House[ v. Bell, 547 U.S. 518 (2006)],

11

appears that Robertson claims that he is actually innocent of the crime at issue.

In assessing such a claim of actual innocence, a federal habeas court normally first

examines the evidence presented at trial and on which the petitioner’s conviction was based. See,

e.g., Johnson v. Cain, No. 14-543, 2015 WL 4528889, at *3 (E.D. La. July 27, 2015), aff’d, 667

F. App’x 474 (5th Cir. 2016); Lyles v. Tanner, No. 13-655, 2014 WL 4674673, at *6 (E.D. La.

Sept. 17, 2014). Here, Robertson was convicted of attempted simple burglary of a 2017 Chevy

Tahoe. In the instant case, the Louisiana Fifth Circuit Court of Appeal summarized the evidence

as follows:

Detective Brent Baldassara, assigned to the burglary theft section of the Jefferson

Parish Sheriff’s Office (“JPSO”), testified he worked a “paid detail” patrolling the

Metairie Country Club subdivision from 11:00 P.M. on November 22, 2020 until

7:00 A.M. on November 23, 2020. He stated that he has worked this paid detail for

“around one year.” When he patrols the area, he drives an unmarked vehicle that

has sirens and lights. On November 22, 2020, while driving north in the 500 block

of Iona Street, he observed an unidentified black male wearing dark-colored

clothing and a protective “face covering” walking southbound on Iona Street

towards Avenue E. When the unidentified man noticed his vehicle, he ran and hid

behind some bushes in a nearby residence. Detective Baldassara testified that he

stopped his vehicle, identified himself as “the police,” attempted to locate the

subject, and notified headquarters of the incident.

Detective Baldassara testified that his search was unsuccessful and he returned to

his vehicle. He “circled the block” and returned to Iona Street. Detective Baldassara

stated that he saw the suspect a second time when he reappeared from behind some

bushes and the suspect ran into the rear yard of a residence “going back towards

Hector” Avenue. He proceeded to the 500 block of Hector Avenue, where he

observed the arrival of assisting officers, including Deputy Nick Songy and Deputy

Davis. Deputy Songy noticed a side gate open at 524 Hector Avenue. The three

officers went through the gate into the rear yard of the residence. Detective

Baldassara testified that he noticed the subject “squatting” next to some bushes

along the rear fence. He recounted that the subject was wearing the same clothing

as the individual he observed running away from him near Iona Street.

Detective Baldassara testified that the subject was detained at that time, identified

himself, and he was placed in his patrol vehicle. Defendant told the officers that he

resided at 3501 Roger Williams Boulevard, in New Orleans. After defendant was

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Avenue and discovered a bandana on the ground where defendant was observed

“squatting.” Defendant told the officers that he had been at a bar on Airline Drive

and was using the subdivision as a “cut-through” to get to his residence. Defendant

did not identify the bar despite Detective Baldassara requesting the bar’s name.

Defendant was subsequently arrested based on his outstanding attachments and

taken to JPSO.

After defendant’s arrest, but on the same morning of November 23, 2020, Detective

Baldassara was informed that there had been an attempted burglary of a vehicle in

the area he was patrolling. He testified that he spoke to Clifford Brown, the owner

of the vehicle, who resided at 529 Hector Avenue. Mr. Brown provided him with

surveillance footage from his “Ring” camera showing the attempted burglary of his

vehicle.

Upon reviewing the surveillance footage at trial, Detective Baldassara affirmatively

identified defendant as the individual in the surveillance footage. He testified that

the individual in the surveillance footage had on the same clothing as defendant

when he was arrested. In the surveillance footage, he could see a maroon colored

shirt underneath the black sweatshirt the individual was wearing. On the night he

was arrested, defendant was wearing dark clothing with a maroon shirt underneath.

Detective Baldassara also verified the bandana he logged into evidence after

defendant’s arrest as the same black and white bandana Deputy Songy found in the

yard where defendant was found hiding. He stated that in the video, defendant

attempted to open the vehicle’s door with the bandana. Based on the bandana and

defendant’s clothing, Detective Baldassara made the decision to “rebook”

defendant with attempted simple burglary. He explained that when defendant

pulled the door handle with the bandana, the bandana got stuck, which caused an

“audible sound” as the bandana was pulled free from the door handle. Detective

Baldassara verified that defendant was wearing a maroon shirt when he was

arrested after viewing a “booking photo” of defendant. Detective Baldassara also

identified defendant in open court as the individual he arrested in the subdivision.

In furtherance of the circumstantial evidence indicating defendant and the

individual in the surveillance footage were the same, he testified that on the night

he chased and arrested defendant, he did not see anyone else in the Metairie Country

Club subdivision and that defendant was arrested in the general vicinity of the

attempted burglary of the vehicle.

On cross-examination, Detective Baldassara conceded that his report provided that

in the surveillance footage, defendant “utilized a dark-colored fabric which was

identified as the bandana found in the rear year of where he was located.” Detective

Baldassara was shown the black and white bandana in evidence and agreed that the

bandana is “mostly black.” He was then shown the surveillance footage in which

defense counsel stated that the bandana or fabric used on the door handle appeared

“white or light colored.” Detective Baldassara admitted that the “video is poor

quality, distorted” but he made a decision based on his observations and the video,

13

defendant’s booking photo shows that his hair is gray, his report and the subsequent

affidavit of arrest listed defendant’s hair color as black and bald, respectively. He

admitted he obviously had trouble identifying defendant’s hair color. Despite the

discrepancy in his hair color, Detective Baldassara testified that defendant was the

individual he arrested in the rear yard of the residence on Hector Avenue and that

he is the individual in the surveillance footage, as indicated by the clothing and

bandana. Detective Baldassara testified defendant’s clothes were not seized as

evidence when he was initially arrested on his outstanding attachments because at

that point they did not have any reports or complaints of criminal activity. He

acknowledged that individuals flee from the police “sometimes” when they have

outstanding warrants for their arrest.

JPSO Deputy Nicholas Songy testified that he was also working a “paid detail,”

patrolling the Metairie Country Club subdivision on November 22, 2020 and

November 23, 2020. He stated he has been working this particular detail for

approximately 11 years and is familiar with the area. He stated that normally, there

is only one unit patrolling the area. However, during holiday seasons, the

subdivision sometimes has two units patrolling because people go out of town. He

testified that the night defendant was arrested in the subdivision was during the

Thanksgiving holiday. Detective Songy testified that he was the “primary unit” and

Detective Baldassara was the “back-up unit.” Detective Baldassara radioed that he

observed a subject in the 500 block of Hector or Iona and gave a description of the

subject. Detective Songy arrived quickly to the location to assist with canvassing

for the subject, and that the patrol area was a small area. He observed a gate

“slightly ajar” on a residence that “back[ed] up to Iona.” He went through the gate

with Detective Baldassara and Deputy Davis. As they approached the back fence,

he saw a “dark figure hunched over ... trying to hide his face, trying to look as dark

as possible.” They detained the subject and removed him from the backyard.

Deputy Songy stated that he returned to the backyard to search for anything that

may have been left behind or discarded by the subject, such as a gun. He testified

that he found the bandana “in the exact area” where they located defendant.

Because it was evidence and defendant was already in the patrol unit, Depute Songy

testified that he gave the bandana to Detective Baldassara and he did not ask

defendant if the bandana belonged to him. He identified defendant in open court as

the individual he found in the backyard of the residence on Hector Avenue. Deputy

Songy was shown the bandana in evidence and positively identified it as the

bandana he found that night.

Deputy Songy testified that in order to access the subdivision from Airline Drive,

a person would need to scale or climb several obstructions, such as an eight to ten-

foot fence, a twelve-foot wall, or other gates. He explained that the area where the

attempted burglary occurred was located in the opposite direction of where

defendant indicated he was heading. Deputy Songy testified that this subdivision

was not a “cut-through” to get from Airline Drive to defendant’s residence unless

the person was climbing fences and going through several backyards. He further

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were canvassing the area for the subject and that no one else matched the

description of the subject except defendant. Deputy Songy testified that he saw the

surveillance footage a day or two after defendant was arrested when he was

informed of the attempted burglary that occurred in the same vicinity and directly

across the street from where they found defendant.

Clifford Brown, the owner of the vehicle, testified that he resided at 529 Hector

Avenue. On the morning of November 23, 2020, he reviewed the surveillance

footage video from his Ring camera and discovered that between the early hours of

that day and the late night hours of the prior night, someone attempted to break into

his vehicle, a 2017 Chevrolet Tahoe. Mr. Brown testified that he did not recognize

or know defendant and asserted that he did not give defendant or any other

individual permission “to use, enter, or in any shape, form, or fashion go into [his]

vehicle” on the night of November 22, 2020 through the morning of November 23,

2020. He provided a copy of the surveillance footage to JPSO and it was published

to the jury.

The surveillance footage was a sixty-nine-second recording that captured a black

male, wearing a white protective facemask, a dark-colored hooded sweatshirt, with

a maroon shirt underneath, and dark-colored jeans, walking up to Mr. Brown’s

vehicle in his driveway. With the bandana, the man in the video pulled the locked

front-passenger door handle. As he released the door handle, the bandana became

“stuck.” The individual pulled the banana out, which resulted in the door handle

making an “audible sound,” and he then walked away.31

At the next step of an “actual innocence” analysis, a federal court then considers the new

evidence of actual innocence offered by the habeas petitioner. Specifically, the United States

Supreme Court has explained that, in order to assert a credible claim of actual innocence, a

petitioner is required “to support his allegations of constitutional error with new reliable evidence

– whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence – that was not presented at trial. Because such evidence is obviously unavailable

in the vast majority of cases, claims of actual innocence are rarely successful.” Schlup v. Delo,

513 U.S. 298, 324 (1995).

31 Robertson, 360 So. 3d at 586–89 (footnotes omitted); Rec. Doc. 10 at 130–35. The Louisiana Fifth Court

of Appeal then went on to reject Robertson’s claim that the foregoing evidence was insufficient to support his

conviction. Id. at 589–94; Rec. Doc. 10 at 135–43.

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innocence on the underlying crime to which he was found guilty. Without such evidence, he simply

cannot meet even “the threshold requirement” for McQuiggin to apply, i.e., a showing that “ ‘in

light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond

a reasonable doubt.’ ” McQuiggin, 569 U.S. at 386 (quoting Schlup, 513 U.S. at 329). Accordingly,

McQuiggin does not aid him.

Because Robertson is not entitled to statutory tolling, and because he has not established

that he is eligible for equitable tolling or that the “actual innocence” exception applies, his federal

application for habeas corpus relief had to be filed no later than April 29, 2024, in order to be

timely. His application was not filed until April 18, 2025, and, therefore, it is untimely.

RECOMMENDATION

IT IS RECOMMENDED that Dan Robertson’s petition for issuance of a writ of habeas

corpus filed pursuant to 28 U.S.C. § 2254 be DISMISSED WITH PREJUDICE as time-barred.

A party’s failure to file written objections to the proposed findings, conclusions, and

recommendation in a magistrate judge’s report and recommendation within fourteen (14) days

after being served with a copy shall bar that party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by

the district court, provided that the party has been served with notice that such consequences will

result from a failure to object. 28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass’n,

79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).32

32 Douglass referenced the previously applicable ten-day period for the filing of objections. Effective December 1,

2009, 28 U.S.C. § 636(b)(1) was amended to extend that period to fourteen days.

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New Orleans, Louisiana, this 21st day of October, 2025.

\ JANIS VAN MEERVELD

UNITED STATES MAGISTRATE JUDGE

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