Lockett v. Day ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30461
Summary Calendar
LEMUEL LOCKETT,
Petitioner-Appellant,
versus
ED C. DAY, JR.,
Warden
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 99-CV-3030-D
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June 20, 2001
Before JOLLY, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
Lemuel Lockett, Louisiana prisoner # 81144, appeals the
district court’s dismissal of his 28 U.S.C. § 2254 petition as
time barred by the Antiterrorism and Effective Death Penalty
Act’s (AEDPA) one-year limitations period. Lockett’s conviction
became final in 1991. The district court concluded that the
deadline for filing a timely petition was November 6, 1997.
Lockett filed his § 2254 petition on October 18, 1999. The
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 CIR.
R. 47.5.4.
No. 00-30461
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district court granted a certificate of appealability (COA) on
the time-bar issue.
On appeal, Lockett argues that (1) the application of the
limitations period violates the First Amendment’s Redress of
Grievances Clause and abridged his right to file a state petition
for habeas corpus relief pursuant to La. Code of Crim. Proc. art.
930.8; (2) his state habeas petition filed on July 11, 1998,
tolled the limitations period; (3) the time for filing a timely
§ 2254 petition should run from April 3, 1998, the date that this
court issued its decision in Humphrey v. Cain, 138 F.3d 552(1998); and (4) the trial court gave an unconstitutional
reasonable-doubt jury instruction in light of Cage v. Louisiana,
498 U.S. 39 (1990), and Sullivan v. Louisiana, 508 U.S. 275(1993).
Lockett’s fourth issue does not address directly the
timeliness issue for which the district court granted a COA. As
such, it is not before this court on appeal. See United States
v. Kimler, 150 F.3d 429, 430 (5th Cir. 1998).
Lockett has failed to demonstrate that the AEDPA’s
limitations period is unconstitutional in the context of the
First Amendment right to petition the government. The district
court’s application of the limitations period did not hinder
Lockett’s ability to file a state habeas petition. Nor did the
fact that Lockett filed a timely state petition under article
930.8 take precedence over the AEDPA’s limitations period. See
In re Davis, 170 F.3d 475, 481 (5th Cir. 1999)(under Supremacy
Clause, Congress may override state law); Cantu-Tzin v. Johnson,
No. 00-30461
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162 F.3d 295, 298 (5th Cir. 1998)(noting the AEDPA limitations
period was enacted to “bring regularity and finality to federal
habeas proceedings); Davis v. Johnson, 158 F.3d 806, 811 (5th
Cir. 1998)(explaining that AEDPA “evinces a congressional intent
to impose a one-year statute of limitations for the filing of
federal habeas claims by state prisoners”). Lockett filed his
second state application on July 11, 1998, well beyond the
deadline for filing a timely § 2254 petition; therefore, it did
not toll the limitations period.
Lockett’s reliance on Humphrey is misplaced. The AEDPA’s
limitations period commences from the date the Supreme Court
acknowledges the constitutional right that is being asserted.
See United States v. Lopez, 2001 WL 388092, *4 (5th Cir. April
16, 2001)(§ 2255 case). Cage was decided in 1990 and Sullivan
was decided in 1993. Even with the benefit of the AEDPA’s grace
period, Lockett failed to file his petition within the one-year
limitations period. The district court properly dismissed
Lockett’s October 18, 1999, petition as time-barred.
Accordingly, the district court’s judgment is AFFIRMED.