Petition for Writ of Certiorari — Jamaal Diggs, Petitioner v. Darrel Vannoy, Warden

-0

APPENDIX66 ”

(U.S. Court of Appeals Decision)

Case: 18-31152

Document: 00515702330

Page: 1

Date Filed: 01/11/2021

fHmteb States Court of appeals!

for tfje JftftI) Circuit

United States Court of Appeals

Fifth Circuit

FILED

January 11,2021

No. 18-31152

Lyle W. Cayce

Clerk

Jamaal Diggs,

Petitioner—Appellant^

versus

Darrel Vannoy, Warden, Louisiana State Penitentiary,

Respondent—Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 6:17-CV-1624

Before Wiener, Costa, and Willett, Circuit Judges.

Per Curiam:*

Jamaal Diggs sought federal postconviction relief to challenge his state

murder conviction. But by the time he filed his federal petition for a writ of

habeas corpus, the one-year time limit for doing so had lapsed. Diggs

recognizes that the petition was late but contends the district court should

‘ Pursuant to 5th Circuit Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5th Circuit Rule 47.5.4.

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have tolled the limitations period. Because the district court did not abuse its

discretion in concluding that equitable tolling was not appropriate, we affirm.

I.

Jamaal Diggs shot and killed a man in broad daylight. At his trial, two

eyewitnesses testified that Diggs was the shooter. Diggs was convicted of

second-degree murder and sentenced to life in prison.

The intermediate state court rejected Diggs’s direct appeal on

February 12, 2014. Because he failed to appeal that ruling to the state

supreme court, Diggs’s conviction became final thirty days later, on March

14. See La. SUP. Ct. R. X, § 5(a).

Diggs waited almost a year—334 days to be exact—to seek state

habeas relief. The state trial court denied that petition in 2015. The

intermediate state court denied a petition for review the next year. The

Louisiana Supreme Court then took nineteen months to deny a petition for

review, doing so on September 29,2017.

But Diggs did not immediately learn of the state supreme court’s

ruling. Because of staff turnover, that court failed to send court decisions to

Diggs’s prison for a two-month period in 2017. As a result ofthis delay, Diggs

did not learn about the high court’s ruling until November 9, 2017, 41 days

after the state high court had denied his petition.

It took Diggs 29 days after learning about his state court loss to file his

federal habeas petition. He recognized he was filing outside the one-year

limitations period but asked the federal district court to toll the clock for the

41 days the state supreme court failed to notify him of its ruling. That tolling

would allow Diggs’s federal petition to come in just under the wire (363

days).

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The magistrate judge recommended dismissing the petition as

untimely, concluding that Diggs had failed to exercise the due diligence

required for tolling. The magistrate judge emphasized Diggs’s delay in filing

both his state and federal petitions. The district court agreed and dismissed

the habeas petition with prejudice.

We authorized this appeal of the district court’s refusal to toll the

limitations period.

II.

A federal petition for a writ of habeas corpus must be filed within one

year of when the conviction became final. 28 U.S.C. § 2244(d)(1)(A). But

that period is tolled when a state habeas petition is pending. Id. § 2244(d)(2).

As we have recounted, Diggs filed his petition 404 days after his conviction

became final. So it is only timely if he is entitled to equitable tolling for the

41 days during which he did not know the Supreme Court of Louisiana had

rejected his petition.

Equitable tolling may be warranted in “rare and exceptional

circumstances. ” Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (quoting

Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998)). Equitable tolling is

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

the facts and circumstances of a particular case.” Id. But there are two

general requirements: a habeas petitioner must show “‘(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance

stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S.

631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see

also Mathis v. Thaler, 616 F.3d 461,474 (5th Cir. 2010). A state-created delay

in sending a court opinion to a petitioner may constitute an extraordinary

circumstance. See, e.g., Phillips v. Donnelly, 216 F.3d 508,511 (5th Cir. 2000).

But the district court did not abuse its discretion in finding that Diggs failed

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to demonstrate the other requirement: due diligence. Ott v. Johnson, 192 F.3d

510, 513 (5th Cir. 1999) (applying the abuse-of-discretion standard).

Those who “ sleep on their rights ” are not entitled to equitable tolling.

Fisher, 174 F.3d at 715 (quoting Covey v. ArkR. Co., 865 F.2d 660, 662 (5th

Cir. 1989)). 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.

Hardy v. Quarterman, 577 F.3d 596, 598 (5th Cir. 2009) (alteration in

original) (quoting Phillips, 216 F.3d at 511).

We therefore consider the timing of both the petitioner’s state and

federal habeas petitions. Jackson v. Davis, 933 F.3d 408, 411-13 (5th Cir.

2019). For the state habeas filing, we have found diligence when a petitioner

waited two months to file, see Hardy, 577 F.3d at 599, but not when it took up

to seven months to file, see Stroman v. Thaler, 603 F.3d 299,302-03 (5th Cir.

2010). For the federal habeas filing, “[w]e have found diligent petitioners

who filed in federal court one week, three weeks, and one month after

receiving delayed notice of the denial of state habeas relief.” Jackson, 933

F.3d at 411 (citing Hardy, 577 F.3d at 597; Williams v. Thaler, 400 F. App’x

886, 891 (5th Cir. 2010); Phillips, 216 F.3d at 511) (cleaned up). But we have

found a petitioner was not diligent when he waited seven weeks to file in

federal court. Stroman, 603 F.3d at 302.

The promptness of the filings in the above cases offers useful

guidance, Jackson, 933 F.3d at 411, but the equitable nature of tolling

ultimately requires a holistic assessment of the petitioner’s diligence.

Palacios v. Stephens, 723 F.3d 600, 606 (5th Cir. 2013). Consequently, a

petitioner who waited to file his state petition until there was only a little over

a month remaining on the clock nonetheless showed diligence by filing

motions seeking an evidentiary hearing before the state court, inquiring about

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the status of his state petition while it was pending, and then filing his federal

habeas petition within one week of being notified that his state petition had

been denied. Umana v. Davis, 791 F. App’x 441, 442-43 (5th Cir. 2019). A

petitioner also showed diligence despite having filed his state petition with

less than a month remaining when he made four inquiries to the state court

about its delay and contacted the federal court regarding his federal petition

17 days after he learned of the state court’s ruling. Williams, 400 F. App’x

at 891. On another occasion, a petitioner, who received notice that his state

habeas petition was denied four months after the fact, showed diligence by

filing an out-of-time appeal in state court just three days after he received this

delayed notice. Phillips, 216 F.3d at 511.

Diggs cannot demonstrate diligence in any of these facets: not on the

front end of filing the state habeas petition, not on the back end of filing the

federal petition after the state court denial, and not in between those times

by inquiring about the status of his pending state habeas petition. Diggs

waited 334 days after his conviction became final before mailing his state

petition, leaving him only 30 days to file a federal petition once the state

habeas proceedings concluded. Then, once he received notice (albeit

delayed) that his state petition had been denied, he waited another 29 days to

file in federal court. And although more than a year and a half had passed

between Digg’s submitting his petition to the Louisiana Supreme Court and

receiving the final decision, he never inquired about the case’s status. The

district court thus did not abuse its discretion in concluding that both before

and after receiving notification that his state petition was denied, Diggs failed

to demonstrate the degree of diligence that warrants toiling the statutory

filing deadline.

***

We Affirm the judgment of the district court.

5

APPENDIX “ ”

(U.S. District Court's Decision)

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WEST LAW

Diggs v. Vannoy

United States District Court, W.D. Louisiana, Lafayette Division. • October 12, 2018 ' Not Reported in Fed. Supp. \ 2018WL49558f

2018 WL 4955867

Only the Westlaw citation is currently available.

United States District Court, W.D. Louisiana,

Lafayette Division.

Jamaal DIGGS #486702

v.

Darrel VANNOY

CIVIL ACTION NO. 17-CV-1624-P

Signed 10/12/2018

Attorneys and Law Firms

Jamaal Diggs, Angola, LA, pro se.

Daniel M. Landry, III, D A's Office 15th J.D.C., Lafayette, LA, Ted L. Ayo, 15th J.D.C.,

Abbeville, LA, for Darrel Vannoy.

JUDGMENT

S. MAURICE HICKS, JR., CHIEF JUDGE

*1 For the reasons stated in the Report and Recommendation of the Magistrate Judge

previously filed herein, and after an independent review of the record including the

objections filed by petitioner, and having determined that the findings and recommendation

are correct under the applicable law;

IT IS ORDERED that the petition for habeas corpus be DISMISSED WITH PREJUDICE as

time-barred by the provisions of 28 U.S.C. § 2244(d).

THUS DONE AND SIGNED in Shreveport, Louisiana, on this 12th day of October, 2018.

All Citations

Not Reported in Fed. Supp., 2018 WL 4955867

End of

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APPENDIX “C”

(U.S. District Court Magistrate Report and Recommendation)

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WEST LAW

Diggs v. Vannoy

United States District Court, W.D. Louisiana, Lafayette Division. | September 18, 2018 \ Not Reported in Fed. Supp. j 2018 WL 495

^oi8 WL 4956950

Only the Westlaw citation is currently available.

United States District Court, W.D. Louisiana,

Lafayette Division.

Jamaal DIGGS #486702

v.

Darrel VANNOY

CASE NO. 6H7-CV-01624

Signed 09/18/2018

Attorneys and Law Firms

Jamaal Diggs, Angola, LA, pro se.

Daniel M. Landry, III, DA's Office, Lafayette, LA, Ted L. Ayo, Abbeville, LA, for Darrel

Vannoy.

SEC P

REPORT AND RECOMMENDATION

CAROL B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE

*1 Pro se petitioner Jamaal Diggs, an inmate in the custody of Louisiana’s Department of

Corrections, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254

on December 11, 2017. Petitioner attacks his 2012 conviction for second degree murder

and the life sentence imposed thereafter by the Fifteenth Judicial District Court, Vermilion

Parish, Louisiana. This matter has been referred to the undersigned for review, report, and

recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing

orders of the Court.

I. Background

On October 24, 2012, a jury found petitioner guilty as charged of second degree murder

and he was sentenced to serve life in prison without the benefit of parole, probation, or

suspension of sentence. His retained appellate attorney argued the following assignments

of error on direct appeal to the Third Circuit Court of Appeal: (1) evidence at trial was

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contradictory, inconsistent and tainted, therefore, legally insufficient; and (2) his sentence

was unconstitutionally excessive. On February 12, 2014, the Third Circuit affirmed

petitioner's conviction and sentence. State of Louisiana v. Jamaal Cole Diggs, 13-766 (La.

App. 3 Cir. 2/14/2014), 154 So.3d 15; see also Rec. Doc. 1-3, pp. 4-15. Petitioner did not

file an application for writ of certiorari in the Louisiana Supreme Court. See Rec. Doc. 1-2,

P- 3.

On February 11, 2015, petitioner filed a pro se application for post-conviction relief in the

Fifteenth Judicial District Court. [Rec. Doc. 1-3, pp. 23-56]. Petitioner alleged three claims

for relief: (1) ineffective assistance of trial counsel in failing to object when prosecutor

elicited police officer testimony of petitioner's post-/W/ranc/a exercise of his Fifth

Amendment right against self-incrimination; (2) ineffective assistance of appellate counsel

in failing to raise the issue of trial counsel failing to object to the prosecutor elicited police

officer testimony; (3) ineffective assistance of trial counsel in failing to raise issue of

impeached testimony, standing alone, being unconstitutionally used to obtain conviction;

and (4) ineffective assistance of trial counsel in failing to object to prosecutorial misconduct

where prosecutor made prejudicial remarks concerning facts not offered in evidence. [Rec.

Doc. 1-3, p. 41]

The trial court denied plaintiffs application on August 10, 2015. [Rec Doc. 1-4, pp. 2-3] On

September 8, 2015, Petitioner sought further review in the Third Circuit Court of Appeal

[Rec. Doc. 1-4, pp. 5-30] and on March 14, 2016, in Docket Number KH-15-00853, the

Court of Appeal denied writs, finding no error in the trial court's ruling. [Rec. Doc. 1-4, p.

32] Thereafter, Petitioner filed an application for writs in the Louisiana Supreme Court.

[Rec. Doc. 1-4, pp. 35-57] On September 29, 2017, that court denied writs without

comments. State of Louisiana ex rel. Jamaal Cole Diggs v. State of Louisiana, 2016KH-0697 (La. 9/29/2017), 227 So.3d 260; see also [Rec. Doc.1-4, p. 60] Petitioner asserts

however, that he did not receive the Court's ruling until November 9, 2017, due to a delay

in the sending of the Court's ruling, established by correspondence sent from Louisiana

Supreme Court Clerk of Court, John Tarlton Olivier, and attached as an exhibit to the

instant petition. [Rec. Doc. 1-3, p. 2]

•

*2 Petitioner filed the instant petition on December 11,2017. He argues the following

claims for relief: (1) the evidence at trial was contradictory, inconsistent and tainted,

therefore legally insufficient to establish the defendant’s guilty behind reasonable doubt; (2)

should a defendant be automatically imprisoned for life without the chance or opportunity to

ever be released without a meaningful and particularized evaluation of an appropriate

sentence in view of Dorthey and its progeny; (3) trial counsel in failing to object when

prosecutor elicited police officer testimony of petitioner’s post-Miranda exercise of his Fifth

Amendment right against self-incrimination; (4) trial counsel failed to object to prosecutor

elicited police officer testimony of petitioner's post-Miranda silence and ask for a mandatory

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mistrial/appellate counsel failed to raise the issue on direct appeal; (5) trial counsel failed to

raise issue of impeached testimony, standing alone, being unconstitutionally used to obtain

conviction; and (6) trial counsel failed to object to prosecutorial misconduct where

prosecutor made prejudicial remarks concerning facts not offered in evidence.

II. Law and Analysis

A. Standard of Review - 28 U.S.C. § 2254

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, 28 U.S.C. § 2254,

governs habeas corpus relief. The AEDPA limits how a federal court may consider habeas

claims. After the state courts have “adjudicated the merits” of an inmate's complaints,

federal review “is limited to the record that was before the state court[.]” Cullen v.

Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). An inmate must

show that the adjudication of the claim in state court:

(1) resulted in a decision that was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the United

States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.

28 U.S.C. §2254(d)(1)-(2).

A decision is “contrary to” clearly established Federal law “if the state court arrives at a

conclusion opposite to that reached by ... [the Supreme Court] on a question of law or if the

state court decides a case differently than [the Supreme Court] has on a set of materially

indistinguishable facts.” Dowthitt v. Johnson, 230 F.3d 733, 740-41 (5 Cir. 2000) (quoting

Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). “The ‘contrary

to’ requirement refers to holdings, as opposed to the dicta, of... [the Supreme Court’s]

decisions as of the time of the relevant state court decision.” Id. at 740. Under the

“unreasonable application” clause, a federal habeas court may grant the writ only if the

state court “identifies the correct governing legal principle from ... [the Supreme Court's]

decisions but unreasonably applies the principle to the facts of the prisoner's case.” Id. at

741.

Section 2254(d)(2) speaks to factual determinations made by the state courts. Federal

courts presume such determinations to be correct; however, a petitioner can rebut this

presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

B. Timeliness

This petition was filed after the effective date of the Anti-Terrorism and Effective Death

Penalty Act of 1996 (AEDPA). Therefore, the court must apply the provisions of AEDPA,

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including the timeliness provisions. Villegas v. Johnson, 184 F.3d 467, 468 (5th Cir.

8/9/1999); In Re Smith, 142 F.3d 832, 834, citing Lindh v. Murphy, 521 U.S. 320, 336, 117

S.Ct. 2059, 138 L.Ed.2d 481 (1997). Title 28 U.S.C. § 2244(d)(1)(A) was amended by

AEDPA to provide a one-year statute of limitations for the filing of applications for writ of

habeas corpus by persons such as petitioner, who are in custody pursuant to the judgment

of a State court. This limitation period generally runs from "... the date on which the

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).

However, the statutory tolling provision of 28 U.S.C. § 2244(d)(2) provides that the time

during which a properly filed application for post-conviction relief was pending in state court

is not counted toward the limitation period. Ott v. Johnson, 192 F.3d 510, 512 (5th Cir.

1999); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998); 28 U.S.C. § 2244(d)(2). Any

lapse of time before the proper filing of an application for post-conviction relief in state court

is counted against the one-year limitation period. Villegas, 184 F.3d 467, citing Flanagan v.

Johnson, 154 F.3d 196, 197 (5th Cir. 1998).

*3 Federal courts have interpreted § 2244(d)(1)(A) to provide that the state court judgment

is not final for habeas purposes until the 90 day period for filing a writ of certiorari to the

United States Supreme Court has run (see Supreme Court Rule 13; Ott v. Johnson, 192

F.3d 510 (5th Cir. 1999)). “Direct review, which includes a petition for certiorari to the

Supreme Court, occurs ‘when the Supreme Court either rejects the petition for certiorari or

rules on its merits.' Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). If no petition is

filed, then we examine the second method of creating finality, ‘the expiration of the time for

seeking such review.’ Id. If a criminal defendant has pursued his direct appeal through the

highest state court, then this period includes the 90 days for filing a petition for certiorari to

the Supreme Court. Id. If not, then it includes the time for seeking further state-court direct

review. Id. At the conclusion of these periods, the judgment becomes final.” Foreman v.

Dretke, 383 F.3d 336, 338 (5th Cir. 2004)(emphasis supplied).

Federal courts may raise the one-year time limitation sua sponte. Kiser v. Johnson, 163

F.3d 326 (5th Cir. 1999). Petitioner concedes that his petition is untimely. The respondent,

however, asserts that the petition is timely and failed to address equitable tolling of the one

year time limitation. Accordingly, the Court will raise the time limitation sua sponte.

As shown above, petitioner concedes, and the published jurisprudence confirms, that

petitioner did not seek further direct review of his conviction and sentence in the Louisiana

Supreme Court. His judgment of conviction and sentence thus became final by “... the

expiration of the time for seeking such review ...” Louisiana Supreme Court Rule X, § 5(a)

provides: “An application seeking to review a judgment of the court of appeal... shall be

made within thirty days of the mailing of the notice of the original judgment of the court of

appeal...” On February 12, 2014, the Third Circuit affirmed petitioner's conviction and

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sentence. State of Louisiana v. Jamaal Cole Diggs, 13-766 (La. App. 3 Cir. 2/14/2014), 154

So.3d 15; see also Rec. Doc. 1-3, pp. 4-15. Thus, petitioner's judgment of conviction and

sentence became final for AEDPA purposes thirty days later, or on or about March 14,

2014, when the delays for filing in the Supreme Court lapsed. Petitioner therefore had one

year, or until March 14, 2015, to file his federal habeas corpus petition.

Petitioner was able to toll the AEDPA’s limitations period when he filed his Application for

Post-Conviction Relief in the District Court. However, he did not file his application until

February 11, 2015, and by that time, a period of almost eleven months (334 days) of the

1-year limitations period had expired un-tolled. Thereafter petitioner was able to toll

limitations until September 29, 2017, when the Louisiana Supreme Court denied writs.

State of Louisiana exrel. Jamaal Cole Diggs v. State of Louisiana, 2016-KH-0697 (La.

9/29/2017), 227 So.3d 260. However, petitioner then allowed 75 days to elapse between

the date the Supreme Court denied writs (September 29, 2017) and the date he signed and

mailed the instant petition (December 11,2017). In other words, the petition is clearly timebarred since 334 days elapsed un-tolled between the date of finality of judgment and the

date he filed his application for post-conviction relief and 72 days elapsed thereafter

between the date the post-conviction proceedings were terminated and the date he filed his

federal habeas petition. More than one year elapsed untolled between the date of finality of

judgment and the date the petitioner filed the instant petition.

1. Equitable Tolling

Petitioner argues for equitable tolling based on the State-created impediment, the delay of

the Court Clerk in mailing the notice of the Louisiana Supreme Court's ruling on his post­

conviction application. The Fifth Circuit has held that the AEDPA's one-year statute of

limitations can, in rare and exceptional circumstances, be equitably tolled. See Davis v.

Johnson, 158 F.3d 806, 811 (5th Cir. 1998). However, “[ejquitable 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.” Coleman v. Johnson, 184

F.3d 398, 402 (5th Cir. 1999) (quotation marks omitted).

*4 “A petitioner's failure to satisfy the statute of limitations must result from external factors

beyond his control; delays of the petitioner's own making do not qualify.” In re Wilson, 442

F.3d 872, 875 (5th Cir. 2006). In other words, "To be entitled to equitable tolling, [the

petitioner] must show ‘(1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way’ and prevented timely filing.” Lawrence v.

Florida, 549 U.S. 327, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) (quoting Pace v.

DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). Of course, the

habeas petitioner has the burden of establishing that he is entitled to equitable tolling, and

Federal courts "must consider the individual facts and circumstances of each case in

determining whether equitable tolling is appropriate.” Alexander v. Cockrell, 294 F.3d 626,

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629 (5th Cir. 2002).

in this case, Petitioner argues that he is entitled to equitable tolling due to the Louisiana

Supreme Court Clerk of Court's delay in mailing the Court’s ruling on his post-conviction

application. To bolster his argument, Petitioner attaches a letter from the Clerk of Court

dated October 25, 2017, which states, “Due to a change in staff, these items [court actions

and acknowledgement letters] have not been sent to the Legal Department at Angola for

distribution since August 25, 2017. We expect to have forwarded all items since that date

by Thursday, October 26, 2017.” [Rec. Doc. 1-3, p.2] Petitioner contends that he did not

receive the Court's ruling under November 9, 2017. Accordingly, he argues that the failure

of the Court to provide timely notice of the denial of his writ provides sufficient reason to

equitably toll the limitations period under the December 8, 2017 mailing of the instant

habeas petition.

Petitioner's own allegations confirm that he did not act with due diligence during the oneyear period. Petitioner squandered most of the one-year available under § 2244(d)(1),

leaving little margin in the event of an error. Petitioner waited almost eleven months (334

days) after his conviction became final before mailing his state application on February 11,

2015. This left only 30 days of the one-year period to act once the state habeas

proceedings concluded. Leaving little margin for error is not cautious and, clearly, not

diligent. See Schmitt v. Zeller, 354 Fed. Appx. 950, 952 (5th Cir. 2009) (unpublished per

curiam) (having only two months to act once the state habeas proceedings concluded,

having squandered most of the one-year period before filing the state application, was a

factor in denying equitable tolling); Hudson v. Quarterman, 332 Fed. Appx. 209, 210 (5th

Cir.) (unpublished per curiam), cert, denied, 558 U.S. 949, 130 S.Ct. 442, 175 L.Ed.2d 274

(2009) (eleven and one-half month delay in mailing state application after conviction

became final did not evince due diligence; as such petitioner was not entitled to equitable

tolling for two-week delay between mailing of state habeas application and its filing in state

court).

Moreover, petitioner's lack of due diligence did not end here. Following the denial of his

state application, he delayed another 75 days before handing his federal petition to prison

officials for mailing. Petitioner states that he did not learn of the denial of his state writ until

November 9, 2017. Even assuming the truth of this assertion, Petitioner still delayed an

additional 29 days, between learning of the denial of the state writ and the mailing of the

federal petition on December 8, 2017.

Petitioner’s pleadings fail to provide an explanation for the lengthy delays in this case.

Unexplained delays do not evince due diligence or rare and extraordinary circumstances.

“[EJquity is not intended for those who sleep on their rights. Fisher v. Johnson, 174 F.3d

710, 715 (5th Cir. 1999). Nor does Petitioner's pro se status and unfamiliarity with the law

suffice as a basis for equitable tolling. See Turnerv. Johnson, 177 F.3d 390, 391-92 (5th

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Cir. 1999) (“neither a plaintiffs unfamiliarity with the legal process nor his lack of

representation during the applicable filing period merits equitable tolling.”).

*5 The long delay noted above weighs heavily against a finding of equitable tolling in this

case. See Schmitt v. Zeller, 354 Fed. Appx. 950, 951 (5th Cir. 2009) (declining to find

equitable tolling where the petitioner waited 10 months after his conviction became final

before applying for state habeas relief: “We have recognized that a component of the

obligation to pursue rights diligently is not to wait until near a deadline to make a filing, then '

seek equitable tolling when something goes awry”). See also Nelms v. Johnson, 51

Fed.Appx. 482 (5th Cir. 2002) (noting that the Court had “found no case in which equitable

tolling was granted after a petitioner had let ten months of the ... limitations period slip by”).

This is further illustrated in the case of Davis v. Cain, 2017 U.S. Dist. LEXIS 160974, 2017

WL 4296401, *4 (W.D. La. Aug. 8, 2017), where equitable tolling was denied to a petitioner

who allowed 351 days of un-tolled time to elapse before commencing post-conviction

proceedings in state court, thereby leaving only 14 days within which to file in federal court

after the state process ended. As noted by the Court in that case, such a delay "is not due

diligence.” See also Fisher v. Johnson, 174 F.3d 710 (5th Cir. 1999) (denying equitable

tolling where the petitioner commenced his state post-conviction proceedings two days

prior to the expiration of the one-year limitations period and filed his federal habeas corpus

application 17 days after the limitations period had expired); Atkins v. Chappius, 2017 U.S.

Dist. LEXIS 63587, 2017 WL 1489140, *2 (W.D. NY April 26, 2017) (denying equitable

tolling where “plaintiff waited until 12 days prior to the expiration of the statute to file his

motion for collateral relief, indicating that he did not employ due diligence in pursuing his

claims”); Caddell v. Director, 7DCJ-C/D, 2010 U.S. Dist. LEXIS 33367, 2010 WL 1417693,

*3 (E.D. La. Mar. 11, 2010) (same where the petitioner waited 338 days after the finality of

his conviction to commence state post-conviction proceedings); Adams v. Quarterman,

2008 U.S. Dist. LEXIS 22505, 2008 WL 763071, *4 (N.D. Tex. Mar. 20, 2008) (same where

the petitioner commenced his state post-conviction proceedings with only five days

remaining in the limitations period); Harris v. Quarterman, 2007 U.S. Dist. LEXIS 88989,

2007 WL 4258319, *4 (N.D. Tex. Dec. 4, 2007) (same where the petitioner commenced his

state post-conviction proceedings with only one day remaining in the limitations period).

Notwithstanding the initial long delay in commencement of his state post-conviction

proceedings, Petitioner would apparently have this Court grant him equitable tolling

because of the delay that occurred when the state court clerk's office failed to send him

timely notice of the denial of his PCR application. As noted above, Petitioner the Clerk of

Court for the Louisiana Supreme Court did not in fact forward notice of this denial until

approximately one month after the Court's decision, and Petitioner asserts that he did not

receive same until November 9, 2017. This Court concludes, however, that Petitioner still

has not shown that he acted with sufficient diligence to support the application of equitable

tolling in this case.

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v

As noted above, the Fifth Circuit has concluded that "[l]ong delays in receiving notice of

state court action may warrant equitable tolling” under certain circumstances. Hardy v.

Quarterman, 577 F.3d 596, 598 (5th Cir. 2009). Even then, however, a petitioner must

show that he “ ‘pursued the [habeas corpus relief] process with diligence and alacrity' both

before and after receiving notification.” Id., quoting Phillips v. Donnelly, supra 216 F.3d at

511. In the instant case, as noted above, Petitioner did not act with diligence prior to

commencing his PCR proceedings in state court. See Davis v. Cain, supra, 2017 WL

4296401,2017 U.S. Dist. LEXIS 160974 (noting that the petitioner had not shown diligence

and had “put himself in a dangerous position” by waiting until only a “precious 14 days”

remained in the limitations period to commence his state PCR proceedings). Moreover,

after the state court clerk’s office mailed Petitioner the referenced notice on or about

October 26, 2017 (which he allegedly received on November 9, 2017), Petitioner waited

another month, until December 8, 2017, to mail his petition. As pointed out in Davis v. Cain,

supra, 2017 WL 4296401, 2017 U.S. Dist. LEXIS 160974, it was incumbent upon

Petitioner, in light of the limited time remaining to him, to have anticipated the possibility of

delay and to have taken some action to prepare his anticipated pleadings in advance so as

to have them ready to file immediately upon receipt of notice of the state court's action.

Finally, while Petitioner was not legally required to file an earlier “protective” federal habeas

corpus application in order to show that he was acting with diligence, see Palacios v.

Stephens, 723 F.3d 600, 607-08 (5th’ Cir. 2013), citing Pace v. DiGuglielmo, supra, 544

U.S. at 416, 125 S.Ct. 1807, such a filing would have potentially protected him from the

running of the limitations period, and his failure to do so also weighs against a finding of

equitable toiling in this case. Id. (noting that the petitioner's “failure to file a protective

federal habeas petition weighs against but is not dispositive of, the reasonable diligence

inquiry”). See also Madden v. Thaler, 521 Fed. Appx. 316, 323 (5th Cir. 2013) (concluding

that, to show diligence, the petitioner “should have filed a protective federal petition”).

*6 Based on the foregoing, this Court should find that Petitioner is not entitled to equitable

tolling. In short, Petitioner has not shown that he acted with reasonable diligence during the

lengthy period that elapsed before he commenced his PCR proceedings in state court or

during the interval that subsequently elapsed after he received notice, albeit late, of the

denial of his PCR application by the state trial court. Accordingly, Petitioner has not made a

showing sufficient to support a finding of rare and exceptional circumstances that warrant

the application of equitable tolling.

Finally, in certain rare instances, a petitioner may seek to avoid the effect of untimeliness

by establishing that he is in fact innocent of the charged offenses. See McQuiggin v.

Perkins, 569 U.S. 383, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013), The McQuiggin Court

cautioned, however, that viable actual-innocence gateway claims are rare, explaining that

“a petitioner does not meet the threshold requirement unless he persuades the district

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court that, in light of... new evidence, no juror, acting reasonably, would have voted to find

him guilty beyond a reasonable doubt." Id. at 1928, citing Schlup v. Deio, 513 U.S. 298,

329, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (internal quotation marks omitted). To be

credible, a claim of actual innocence requires that a petitioner 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. Schlup v. Deio, supra, 513 U.S. at 324, 115 S.Ct. 851. In the instant

case, Petitioner has presented no new evidence, much less evidence sufficient to support

a claim of actual innocence, and he has therefore failed to set forth a viable claim of actual

innocence sufficient to avoid the operation of the limitations bar. Accordingly, Petitioner's

application should be dismissed as untimely.

II. Conclusion and Recommendation

Therefore

IT IS RECOMMENDED that this petition for habeas corpus be DISMISSED WITH

PREJUDICE because petitioner’s claims are barred by the one-year limitation period

codified at 28 U.S.C. § 2244(d).

Under the provisions of 28 U.S.C. Section 636(b)(1)(C) and Rule 72(b), parties aggrieved

by this recommendation have fourteen (14) days from service of this report and

recommendation to file specific, written objections with the Clerk of Court. A party may

respond to another party's objections within fourteen (14) days after being served with a

copy of any objections or response to the District Judge at the time of filing.

Failure to file written objections to the proposed factual findings and/or the

proposed legal conclusions reflected in this Report and Recommendation within

fourteen (14) days following the date of its service, or within the time frame

authorized by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the

factual findings or the legal conclusions accepted by the District Court, except upon

grounds of plain error. See, Douglass v. United Services Automobile Association, 79

F.3d 1415 (5th Cir. 1996).

Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States

District Courts, this court must issue or deny a certificate of appealability when it enters a

final order adverse to the applicant. Unless a Circuit Justice or District Judge issues a

certificate of appealability, an appeal may not be taken to the court of appeals. Within

fourteen (14) days from service of this Report and Recommendation, the parties may file a

memorandum setting forth arguments on whether a certificate of appealability should issue.

See 28 U.S.C. § 2253(c)(2). A courtesy copy of the memorandum shall be provided to the

District Judge at the time of filing.

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. *

*7THUS DONE in Chambers on this 18th day of September, 2018.

All Citations

Not Reported in Fed. Supp., 2018 WL 4956950

End of

© 2021 Thomson Reuters. No claim to original U.S. Government Works.

Document

WestlawNext. © 2021 Thomson Reuters

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• r.

APPENDIX “D”

(U.S. Court of Appeals Rehearing Order)

Case: 18-31152

Document: 00515755534

Page: 1

Date Filed: 02/24/2021

%

Unitetr States; Court of Appeals

for tfje Jftftf) Circuit

No. 18-31152

Jamaal Diggs

Petitioner—Appellant,

versus

Darrel Vannoy, Warden, Louisiana State Penitentiary,

Respondent—Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 6:17-CV-1624

ON PETITION FOR REHEARING

AND REHEARING EN BANC

(Opinion January 11,2021,5 CiR.,

F.3d

Before Wiener, Costa, and Willett, Circuit Judges.

Per Curiam:

(V)

The Petition for Rehearing is DENIED and no member of this panel

nor judge in regular active service on the court having requested that

the court be polled on Rehearing En Banc, (Fed. R. App. P. and 5th

Cir. R. 35) the Petition for Rehearing En Banc is also DENIED.

Additional material

from this filing is

available in the

Clerk's Office.