Hebrard v. Day

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30201
Summary Calendar
LEONARD HEBRARD,
Petitioner-Appellant,
versus
ED C. DAY, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 99-CV-1647-K
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August 21, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Leonard Hebrard (Hebrard), Louisiana prisoner #106664,
appeals the district court’s dismissal of his petition for habeas
relief pursuant to 28 U.S.C. § 2254. Hebrard argues that the
district court erred in calculating the one-year limitations
period of 28 U.S.C. § 2244(d)(1) because it did not take into
account the fact that Louisiana prisoners have three years to
seek postconviction relief under La. Code of Crim. Proc. Ann.
art. 930.8.
Hebrard has not shown that the district court erred in
*
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this opinion should not be published and is not precedent except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. 00-30201
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dismissing his § 2254 petition as time-barred. Because his
conviction was final before the effective date of the AEDPA, he
had until April 24, 1997, to file his federal habeas petition.
Flanagan v. Johnson, 154 F.3d 196, 201-02 (5th Cir. 1998). His
§ 2254 petition was not filed until May 3, 1999. Hebrard's state
habeas application did not toll the limitations period because it
was not filed until January or April of 1998, after the
expiration of the limitations period. § 2244(d)(2). Hebrard
does not argue that a state impediment prevented him from timely
filing a § 2254 petition. § 2244(d)(1)(B). Further, Hebrard
cites no authority to support his argument that because the state
application was timely filed within the three-year state
limitations period, it should toll the one-year federal
limitations period.
Hebrard also provides no support for his argument that
Congress did not intend for the one-year statute of limitations
to apply when a state postconviction application for relief has
been properly filed or that Congress intended the limitations
period to run only after state remedies have been exhausted. We
noted in Flanagan, 154 F.3d at 199 n.1, that the limitations
period could run before the filing of a request for habeas relief
in the state courts.
Finally, we note that, liberally construed, Hebrard appears
to argue that the limitations period should not be applied to bar
his § 2254 petition because it interferes with or impermissibly
affects the state’s limitations period for the filing of state
habeas applications. Hebrard, without explanation, cites our
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decision in Villegas v. Johnson, 184 F.3d 467, 469-73 (5th Cir.
1999), to support his argument. In Villegas, we did note the
importance of allowing state courts to first address habeas
claims. We did not indicate, however, that the state’s
limitations period should control the federal limitations period.
For the foregoing reasons, the district court's dismissal of
Hebrard's habeas petition is AFFIRMED.