DALLAS STADEN v. TROY PORET ET AL (2020)

ORDER

Before the Court is Petitioner's Motion for Certificate of Appealability (Doc. 24). Petitioner's Motion is unopposed. For the reasons stated herein, Petitioner's Motion is GRANTED.

I. LEGAL STANDARD

To obtain a certificate of appealability, a petitioner must make a “substantial showing of the denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see also 28 U.S.C. § 2253(c)(2). To demonstrate this, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that issues presented were adequate to deserve encouragement to proceed further. Id.

II. ANALYSIS

Petitioner seeks to appeal the Court's Order (Doc. 16) denying his Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1). The Court denied that Petition, finding that it was filed 43 days past the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See (Doc. 16, at p. 5). When tallying up the accrued days that counted towards the statute of limitations period, the Court included a 53-day period that accrued because Petitioner failed to properly file his writ application. Id, at 3. Were this 53-day period not included, the Petition would have been timely filed.

Now, Petitioner invokes two examples from the Eastern District of Louisiana in which courts declined to find that tolling was interrupted by improper filing of the petitions that would otherwise render them untimely under AEDPA. In Gordon v. McCain, the Court declined to “harshly apply” AEDPA's statute of limitations to find the petition untimely by interrupting the tolling period for failure to include an attachment. Reasoning that Louisiana courts “routinely and unmistakably indicate” when their denial of an application is based on untimeliness, and had not done so, the Court found that the petition was successfully tolled despite the filing deficiency. Gordon v. McCain, No. CV 15-2303, 2015 WL 9703424, at *3 (E.D. La. Dec. 22, 2015), report and recommendation adopted, No. CV 15-2303, 2016 WL 153959 (E.D. La. Jan. 13, 2016).

Similarly, the Court in Verrett v. Vannoy held that, while not an untenable position, it would not “rigidly apply the rule” that a state application must be “properly filed” to toll the limitations period. The Verrett Court declined to adopt calculations that included un-tolled time during which the petition, filed without the proper attachments, was being corrected and refiled. Verrett v. Vannoy, No. CV 19-0351, 2019 WL 3805178, at *3 (E.D. La. July 29, 2019), report and recommendation adopted, No. CV 19-351, 2019 WL 3802454 (E.D. La. Aug. 13, 2019).

Considering these rulings, it appears that reasonable jurists could have disagreed whether the Petition in this matter should have been granted. While the Court, naturally, stands by its Order, it acknowledges that others may have ruled differently. As such, the standard to obtain a certificate of appealability is satisfied. See Cockrell, 537 U.S. 322, 336; see also 28 U.S.C. § 2253(c)(2).

III. CONCLUSION

Accordingly, Petitioner's Motion for Certificate of Appealability (Doc. 24) is GRANTED.

Baton Rouge, Louisiana, this 24th day of January, 2020.

JUDGE BRIAN A. JACKSON UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA