Michael Cummings v. Burl Cain, Warden , 449 F. App'x 407 ( 2011 )

Case: 10-30704 Document: 00511663287 Page: 1 Date Filed: 11/11/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 11, 2011
No. 10-30704
Summary Calendar Lyle W. Cayce
Clerk
MICHAEL CUMMINGS,
Petitioner-Appellant
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:09-CV-728
Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Michael Cummings, Louisiana prisoner # 229076,
was convicted in 2001 of possession of cocaine in excess of 200 grams but less
than 400 grams (Count 1), possession with intent to distribute cocaine (Count
2), and distribution of cocaine (Count 3). See State v. Cummings, 2010 WL
3526473 at *1 (La. App. Sept. 10, 2010) (unpublished; discussing procedural
history and affirming conviction and sentence as to Count 3). For Count 1,
Cummings was sentenced as a habitual offender to life imprisonment at hard
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 10-30704
labor without benefit of probation, parole, or suspension of sentence. Id. For
reasons not apparent from the record on appeal , Cummings was not sentenced
at that time for Counts 2 and 3. Id.
The conviction and sentence for Count 1 was affirmed on September, 26,
2003. Id. (citing State v. Cummings, 855 So. 2d 435 (La. App. Sept. 26, 2003)
(unpublished), petition for cert. and/or review denied, 872 So. 2d 511 (La. May
14, 2004) (unpublished)). Count 2 was ultimately dismissed on double jeopardy
grounds, and Cummings was finally sentenced on Count 3 in 2009 to a five-year
term of imprisonment at hard labor without benefit of probation, parole, or
suspension of sentence. Id.
On September 3, 2009, prior to the date when the conviction and sentence
for Count 3 was affirmed, Cummings filed the instant habeas corpus application.
Cummings suggested that his claims challenging his convictions and sentences
for Counts 1 and 3 were “intertwined.” He indicated that he wished to stay the
proceedings to enable him to exhaust all of his claims. The magistrate judge
ordered Cummings to move to dismiss his unexhausted claims. Cummings did
so, and the motion was granted by the district court. The district court then
determined that Cummings’s remaining claims, those challenging his conviction
and sentence for Count 1, were time barred.
A one-year limitations period applies to federal habeas applications filed
by state prisoners. 28 U.S.C. § 2244(d)(1). Except in circumstances not
applicable in this case, the limitations period 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.” § 2244(d)(1)(A). We granted a certificate of
appealability (COA) on whether the judgment as to Count 1 did not become final
for purposes of the federal limitations period until the expiration of the direct
appeal period following Cummings’s sentencing for Count 3. Cummings v. Cain,
No. 10-30704 (5th Cir., Apr. 21, 2011) (unpublished; single-judge order).
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No. 10-30704
The habeas applicant in Scott v. Hubert, 635 F.3d 659, 661 (5th Cir. 2011),
petition for cert. filed (June 7, 2011), was convicted of multiple counts, but his
sentence as to one of those counts was not finally determined until a later date.
See id. The delay in determining his sentence as to that count did not affect the
commencement of the limitation period as to the other counts. See id. at 661 n.1.
Similarly, Cummings was convicted of two counts, but the sentence as to the
second count was not finally determined until a later date. The district court did
not err in concluding that the limitations period as to the conviction for the first
count began to run on the date when the time for seeking direct review of the
2001 judgment expired. See id.; § 2244(d)(1)(A). The judgment is
AFFIRMED.
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