Finch v. Washington

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RANDY FINCH 	CIVIL ACTION
VERSUS 	NO. 25-324
CAPT. HENRY WASHINGTON, ET AL. 	SECTION: “L”(3)
REPORT AND RECOMMENDATION
Randy Finch, a Louisiana state prisoner, filed this federal application seeking
habeas corpus relief pursuant to 28 U.S.C. § 2254. For the following reasons, it is
recommended that the application be DISMISSED WITH PREJUDICE.
Finch was charged with second degree murder.1 After a jury trial, on June 26,
2002, Finch was found guilty as charged.2 On July 16, 2002, the trial court denied
Finch’s post-trial motions, and sentenced him to a term of life imprisonment at hard
labor without the benefit of probation, parole, or suspension of sentence.3
Finch, through counsel, filed a direct appeal to the Louisiana Fourth Circuit
Court of Appeal alleging that the evidence was insufficient to sustain his conviction
for second degree murder. 4 Finch filed a pro se supplemental brief in which he
claimed his trial counsel was ineffective for (1) waiving his right to a jury trial; (2)
refusing to allow him to testify; (3) refusing to call other witnesses; and (4)
withdrawing the motion for new trial and judgment of acquittal.5 On July 23, 2003,
1 R. Doc. 16-1 at 51–52, Bill of Indictment, 11/15/01.
2 Id. at 76, Trial Minutes, 6/26/02.
3 Id. at 78, Sentencing Minutes, 7/16/02; id. at 45–48, Sentencing Transcript, 7/16/02.
4 Id. at 35–43, Appeal Brief, 12/30/02.
5 Id. at 11–19, Pro Se Appeal Brief, 4/4/03.
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the court affirmed Finch’s conviction and sentence.6 The Louisiana Supreme Court
then denied Finch’s related writ application without explanation on February 6,
2004.7
On January 28, 2005, Finch filed his first post-conviction application.8 The
state district court denied relief.9 On February 28, 2005, Finch, through counsel, filed
a motion for reconsideration, and the state district court set the matter for an
evidentiary hearing.10 On March 19, 2007, Finch filed a supplemental memorandum
claiming: (1) insufficient evidence; (2) he was denied the right to testify at trial; (3)
he was denied the right11/6/2025 to a trial by jury; (4) ineffective assistance of counsel
in (a) waiving Finch’s right to a jury trial without Finch’s consent; (b) refusing to
allow Finch to testify; and (c) failing to call several witnesses.11 The state district
court held an evidentiary hearing on May 18, 2007.12 On June 27, 2007, the state
district court denied relief. 13 Finch did not file a writ application or otherwise seek
any further review of the decision.
6 State v. Finch, 853 So. 2d 680 (La. App. 5th Cir. 2003); R. Doc. 16-1 at 2–8.
7 State v. Finch, 865 So. 2d 738 (La. 2004); R. Doc. 17-1 at 35.
8 R. Doc. 14-1 at 36, Docket Master Entry, 1/28/05.
9 Id.
10 Id., Docket Master Entry, 2/28/05.
11 R. Doc. 16-2 at 14–31, Defendant’s Second Supplemental Memorandum in Support
of 	Application 	for 	Post-Conviction 	Relief, 	3/19/07; 	id. 	at 	32–38, 	Supplemental
Memorandum in Support of Application for Post Conviction Relief Filed Pursuant to
La. C. Cr. Art. 924, et. seq., 3/19/07.
12 R. Doc. 14-1 at 37, Docket Master Entry, 5/18/07.
13 Id., Docket Master Entry, 6/27/07.
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On February 10, 2017, Finch filed a second counseled application for post-
conviction relief.14 Finch claimed that newly discovered evidence demonstrated that
he received ineffective assistance of counsel in that trial counsel failed to: (1)
investigate and interview an exculpating witness; (2) effectively cross-examine the
State’s expert pathologist or call an expert or their own on rebuttal; and (3)
investigate his mental capacity.15 He also claimed that he was actually innocent.16
Finch included his affidavit, the affidavits of Kimberly Smith, Rhonda Finch, Terry
Finch, Ronnie Finch, Jr., a February 7, 2017 report by a forensic pathologist, and a
report by Dr. Janet Johnson, who evaluated Finch in January 2017, and reviewed
the affidavits of his family members, and determined that, at the time of the incident,
he suffered from post-traumatic stress disorder, alcohol and marijuana use disorder,
and anxiety disorder, and that he was prone to poor judgment and impaired decision
making, in part due to his childhood experiences. 17 On May 18, 2017, the court
ordered an evidentiary hearing related to the claim of ineffective assistance of counsel
for failure to investigate Finch’s mental capacity and denied the remaining claims.18
On May 31, 2017, the State filed an unopposed motion to vacate the judgment
ordering an evidentiary hearing, noting that it was entitled to file procedural
14 R. Doc. 14-2 at 285–376, Petition for Post-Conviction Relief and Motion for
Evidentiary Hearing, 2/10/17.
15 Id. at 293–304.
16 Id. at 305.
17 Id. at 354–76.
18 R. Doc. 16-2 at 82–85, Judgment, 5/18/17. Finch did not seek writs on the denial of
his ineffective assistance of counsel claims regarding trial counsel’s 	failure to
investigate and interview an exculpating witness and effectively cross-examine the
State’s expert pathologist or call an expert witness.
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objections prior to a determination that an evidentiary hearing was warranted, which
was granted.19 On June 9, 2017, the State filed procedural objections, arguing that
Finch’s application was untimely and repetitive pursuant to La. Code Crim. P. arts.
930.4 and 930.8.20 On July 10, 2017, Finch filed an opposition brief claiming that his
claims were based on newly discovered evidence.21 On July 13, 2017, the state district
court overruled the State’s objections.22
The State sought a supervisory writ from the Louisiana Fourth Circuit Court
of Appeal.23 On September 20, 2017, the court, in granting the State’s writ and
reversing the state district court’s ruling denying the procedural objections, found:
In the present matter, approximately sixteen years after Ms. Moses’
murder, Mr. Finch raises for the first time that he suffered mental
health issues at the time of the crime. An allegation that a defendant
suffered from mental health issues at the time of the murder, which
occurred sixteen years ago, is not the type of evidence the legislature
contemplated when it authorized substantive consideration of otherwise
time-barred post-conviction applications based on “facts upon which the
claim is predicated were not known to the petitioner or his prior
attorneys.” Given the law and the record before us, we find that the
district court erred in denying the State’s procedural objections.24
19 R. Doc. 14-2 at 148–50, State’s Unopposed Motion to Vacate Judgment Ordering
Evidentiary Hearing, 5/31/17.
20 	Id. 	at 	151–55, 	State’s 	Procedural 	Objections 	to 	Defendant’s 	Most 	Recent
Application for Post Conviction Relief, 6/9/17.
21 Id. at 162–250, Petitioner Randy Finch’s Opposition to the State’s Procedural
Objections to his Application for Post-Conviction Relief, 7/10/17.
22 R. Doc. 14-1 at 38, 7/13/17; id. at 206, Minute Entry, 7/13/17.
23 R. Doc. 16-2 at 1–186, Writ Application, 2017-K-0058, 8/8/17.
24 State v. Finch, 410 So. 3d 420, 243 (La. App. 4th Cir. 2017); Doc. 16-3 at 206–11.
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On December 17, 2018, the Louisiana Supreme Court denied Finch’s related writ
application as untimely under La. S. Ct. R. X, § 5.25 On March 18, 2019, the court
refused to consider Finch’s application for reconsideration, citing La. S. Ct. IX, § 6.26
In the interim, on January 23, 2018, Finch filed a counseled federal petition
for habeas corpus relief.27 On January 30, 2018, the Court granted Finch’s motion to
stay.28 That case was reopened on November 9, 2020, and Finch filed an amended
petition on November 18, 2020.29 The case was subsequently stayed a second time
on 	March 	15, 2021. 30 Ultimately, Finch voluntarily withdrew the 	petition 	on
November 3, 2022.31
On December 27, 2018, Finch filed a motion asserting that the following claims
were still before the state district court: (1) ineffective assistance of counsel for failure
to investigate, interview, and call an exculpatory witness; (2) ineffective assistance
for failure to investigate and effectively cross-examine the State’s expert pathologist;
(3) ineffective assistance for failure to call an expert forensic pathologist; and (4)
actual innocence.32 The State opposed the motion.33 Ultimately, the state district
25 State v. Finch, 258 So. 3d 596 (La. 2018); R. Doc. 17-2 at 80.
26 State v. Finch, 267 So. 3d 86 (La. 2019); R. Doc. 17-2 at 101.
27 Finch v. Vannoy, 18-cv-660 “L”(3) (E.D. La.) at R. Doc. 1.
28 Id. at R. Docs. 3 and 6.
29 Id. at R. Docs. 23 and 25.
30 Id. at R. Doc. 37.
31 Id. at R. Docs. 55 and 56.
32 R. Doc. 14-2 at 251–62, Motion to Order Answer Pursuant to Article 927, 12/27/18.
33 Id. at 263–64, State’s Memorandum in Opposition to Defendant’s Motion to Order
Answer Pursuant to Article 927.
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court ordered the State to answer the purportedly remaining claims of ineffective
assistance of counsel and actual innocence.34
On June 13, 2019, the Louisiana Fourth Circuit granted the State’s writ
application, finding as follows:
This court’s disposition in State v. Finch, 2017-0658, determined that
the defendant’s other claims had been resolved and then disposed of the
remaining claim. Moreover, the defendants claims are procedurally
barred: any deficiencies concerning counsel’s performance should have
been raised within the prescriptive period and/or in the earlier (timely
filed) application for post-conviction relief in which defendant also
claimed he received ineffective assistance of counsel. The realtor’s claim
of innocence is wholly unsupported and/or based on hindsight and/or
new explanations concerning the evidence presented at trial, avenues
for relief which the procedural hurdles set out La. Code Crim. Proc.
930.4 and La. Code Crim. Proc/ art. 930.8 were enacted to foreclose.35
On March 9, 2020, the Louisiana Supreme Court denied Finch’s related writ
application, finding that “[t]he application is repetitive. La.C.Cr.P. art. 930.4.”36
On August 12, 2022, Finch, through counsel, filed yet another application for
post-conviction 	relief 	claiming 	his 	sentencing 	counsel 	provided 	ineffective
assistance.37 The State filed procedural objections on September 19, 2022, claiming
that the application was untimely and repetitive. 38 On March 21, 2023, the state
district court held a hearing on the State’s procedural objections.39 The court denied
34 R. Doc. 16-3 at 235, Order, 5/6/19; R. Doc. 14-1 at 213, Minute Entry, 5/7/19.
35 Id. at 504–07, La. App. 4th Cir. Order, 2019-K-0473, 6/13/19.
36 State v. Finch, 290 So. 3d 663 (La. 2020); R. Doc. 17-3 at 418–20.
37 	R. 	Doc. 	14-4 	at 	66–265, 	Second 	Or 	Subsequent 	Uniform 	Application 	for
Postconviction Relief, 8/12/22.
38 R. Doc. 14-1 at 68–75, Attorney General’s Procedural Objections to Petitioner’s
Successive 	Petition 	for 	Post-Conviction 	Relief 	and 	Opposition 	to 	Motion 	for
Evidentiary Hearing, 9/19/22.
39 Id. at 244, Minute Entry, 3/21/23.
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the State’s procedural objections and directed the State to file an answer by April 21,
2023. 40
The State sought a supervisory writ of review. 41 On July 18, 2023, the
Louisiana Fourth Circuit Court of Appeal granted the State’s writ application,
finding Finch’s post-conviction application to be untimely.42 Finch’s application for
rehearing was denied.43 On February 14, 2024, the Louisiana Supreme Court denied
Finch’s related writ application without assigning reasons.44
I. 	Federal Petition
On February 14, 2025, Finch filed his counseled petition for habeas corpus.45
Finch claims that his sentencing counsel was ineffective in failing to investigate and
present mitigation evidence and in failing to move to reconsider the sentence.46
The State asserts that Finch’s application is untimely.47 Alternatively, the
State claims that Finch’s ineffective assistance of counsel claim is procedurally
barred.48 The State also asserts that the claims are meritless.49
Finch did not file a reply brief despite being given an opportunity to do so.
40 Id.
41 R. Doc. 16-4 at 3–82, Writ Application, 5/22/23.
42 Id. at 107–09, La. App. 4th Cir. Order, 2023-K-0329, 7/18/23.
43 Id. at 118, La. App. 4th Cir. Order, 8/22/23; id. at 110–117, Request for Rehearing
and Request for Rehearing En Banc, 8/1/23.
44 State v. Finch, 379 So. 3d 27 (La. 2024); R. Doc. 17-4 at 143.
45 R. Doc. 1. Finch’s counsel has since withdrawn from the case. R. Docs. 7 and 8.
46 Id. at 14–17.
47 R. Doc. 15 at 12–14
48 Id. at 14–16.
49 Id. at 17–21.
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II. 	General Standards of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.
L. No. 104-132, 110 Stat. 1214, applies to Finch’s petition filed in this Court on
February 14, 2025. The threshold questions on habeas review under the amended
statute are whether the petition is timely and whether the claim raised by the
petitioner was adjudicated on the merits in state court; i.e., the petitioner must have
exhausted state court remedies and must not be in “procedural default” on a claim.
Nobles v. Johnson, 127 F.3d 409, 419–20 (5th Cir. 1997) (citing 28 U.S.C. § 2254(b),
(c)).
As indicated, the State claims that the petition should be denied as untimely,
and, alternatively, the ineffective assistance of counsel claim is procedurally barred.
For the following reasons, the petition is indeed untimely, and should be dismissed
for that reason.
III. 	Statute of Limitations
The 	Antiterrorism 	and 	Effective 	Death 	Penalty 	Act 	of 	1996 	(“AEDPA”)
includes a statute of limitations for petitioners seeking federal habeas corpus relief
pursuant to 28 U.S.C. § 2254. Specifically, the AEDPA provides:
A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a
State court. The limitation period shall run from the latest of –
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United
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States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1).
Subsections B and C of 28 U.S.C. § 2244(d)(1) clearly do not apply in the instant
case because Finch does not allege the existence of a state-created impediment or a
newly recognized constitutional right.50 The State argues that Subsection A applies,
while Finch argues that Subsection D is instead applicable. Ultimately, however, that
50 The Court recognizes that Finch argues that, pursuant to La. Code Crim. P. art.
930.8(A)(2), his 2022 application for state post-conviction relief was filed within one
year of the Louisiana Fifth Circuit’s decision in Eugene v. Boutte, No. 21-KH-414,
2021 WL 3569220 (La. App. 5th Cir. Aug. 12, 2021), writ denied, 360 So. 3d 487 (La.
2023), which permitted a claim of ineffective assistance of counsel at sentencing
based on State v. Harris, 340 So. 3d 845 (La. 2020), to move forward. R. Doc. 1 at 2–
4. Yet, in this case, the Louisiana Fourth Circuit Court of Appeal, in granting the
State’s writ application, found that Eugene did not provide an exception under art.
930.8(A)(2) “because nothing in Harris suggested that the Supreme Court intended
that 	its 	ruling 	be 	limited 	to 	cases 	in 	which 	the 	sentencing 	statute 	provided
flexibility….” R. Doc. 16-4 at 108, La. App. 4th Cir. Order, 2023-K-0329, 7/18/23.
Regardless, § 2244(d)(1)(C) runs from the “the date on which the constitutional right
asserted was initially recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” Johnson v. Cain, 2009 WL 3367054, at *6
(E.D. La. 2009) (“The limitations exception, or trigger, found in Section 2244(d)(1)(C),
by its very terms, looks to a new constitutional right created and made retroactive by
the United States Supreme Court, not by a state court’s interpretation or application
of a Supreme Court decision.”) (emphasis in original). Section 2244(d)(1)(C) is simply
not applicable in this case.
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disagreement is of no consequence – Finch’s petition would be untimely under either
of these subsections.
A. Subsection A
If Subsection A applies, Finch’s federal application is clearly untimely. As
noted, under that subsection, the AEDPA’s statute of limitations commences on the
date a petitioner’s state court judgment becomes final. The United States Fifth
Circuit Court of Appeals has explained:
The 	statute 	of 	limitations 	for 	bringing 	a 	federal 	habeas 	petition
challenging a state conviction begins to run on “the date on which the
[state] 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). When a habeas petitioner has pursued relief on direct
appeal through his state’s highest court, his conviction becomes final
ninety days after the highest court’s judgment is entered, upon the
expiration of time for filing an application for writ of certiorari with the
United States Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 693
(5th Cir. 2003).
Butler v. Cain, 533 F.3d 314, 317 (5th Cir. 2008).
The Louisiana Supreme Court denied Finch’s direct-review writ application on
February 6, 2004.51 Finch’s state criminal judgment became final for federal purposes
90 days later, on May 6, 2004, which was the last date Finch could have sought
further review with the United States Supreme Court. Ott v. Johnson, 192 F.3d 510
(5th Cir.1999) (the state court judgment is not final for habeas purposes until the
ninety day period for filing a writ of certiorari to the United States Supreme Court
has expired); Sup. Ct. R. 13. Accordingly, his period for seeking federal habeas corpus
51 Finch, 865 So. 2d at 738; R. Doc. 17-1 at 35.
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relief commenced on that date and then expired one year later on May 6, 2005, unless
that deadline was extended through statutory or equitable tolling.
The Court first considers statutory tolling. Regarding the limitations period
set forth in § 2244(d)(1), federal law expressly provides: “The time during which a
properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall not be counted toward any
period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). A matter is
“pending” for § 2244(d)(2) purposes “as long as the ordinary state collateral review
process is ‘in continuance.’” Carey v. Saffold, 536 U.S. 214, 219–20 (2002); Williams
v. Cain, 217 F.3d 303, 310 (5th Cir. 2000) (a matter is “pending” for § 2244(d)(2)
purposes 	until 	“‘further 	appellate 	review 	[is] 	unavailable 	under 	[Louisiana’s]
procedures.’”).
After 267 days, on January 28, 2005, Finch filed his first application for post-
conviction relief, and it remained pending through July 27, 2007, when the time
expired for Finch to file a writ application with the Louisiana Fourth Circuit Court
of Appeal. See La. Unif. Ct. App. Rule 4-3. At that time, Finch had 98 days remaining
of the one-year limitations period, or until November 2, 2007, to file his habeas
petition. On that day, November 2, 2007, Finch had no properly filed state post-
conviction or other collateral review related to this case pending in any court to
further interrupt the running of the AEDPA one-year filing period. The AEDPA
limitations period therefore expired on November 2, 2007.
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While Finch filed two more applications for post-conviction relief in 2017 and
2022, those applications could not revive the one-year federal limitations period
which had expired on November 2, 2007. See Madden v. Thaler, 521 F. App’x 316, 320
(5th Cir. 2013) (citing Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000)); Magee v.
Cain, No. 99-3867, 2000 WL 1023423, at *4 (E.D. La. July 24, 2000), aff’d, 253 F.3d
702 (5th Cir. 2001) (citing Williams v. Cain, No. 00-536, 2000 WL 863132, at *2 (E.D.
La. June 27, 2000)). Simply put, once the federal limitations period expired, “[t]here
was nothing to toll.” Butler, 533 F.3d at 318.
Nor is Finch is entitled to a re-start of his prescriptive period by virtue of his
August 12, 2022 post-conviction application. Statutory tolling is triggered only by “a
properly filed application for State post-conviction or other collateral review.” 28
U.S.C. § 2244(d)(2). The United States Supreme Court has expressly held that time
limits are conditions of filing and, therefore, an untimely state application cannot be
deemed “properly filed” for the purposes of § 2244(d)(2). Pace v. DiGuglielmo, 544
U.S. 408, 413 (2005). “When a postconviction petition is untimely under state law,
that is the end of the matter for purposes of § 2244(d)(2).” Id. at 414 (quotation marks
and brackets omitted). As noted, in the last reasoned decision, the Louisiana Fourth
Circuit Court sustained the State’s procedural objections and found that Finch’s 2022
post-conviction application was untimely filed under La. Code Crim. P. art. 930.8.52
The Louisiana Supreme Court tacitly adopted that reasoning in its unexplained
52 R. Doc. 16-4 at 107–09, La. App. 4th Cir. Order, 2023-K-0329, 7/18/23.
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denial of Finch’s subsequent writ application on February 14, 2024. 53 Wilson v.
Sellers, 584 U.S. 122, 125 (2018) (“We hold that the federal court should ‘look through’
the unexplained decision to the last related state-court decision that does provide a
relevant rationale . . . then presume that the unexplained decision adopted the same
reasoning.”); Ylst v. Nunnemaker, 501 U.S. 797, 802 (1991) (noting that when the last
state court judgment does not indicate whether it is based on procedural default, the
federal court will presume that the state court has relied upon the same grounds as
the last reasoned state court opinion).
The Court next considers equitable tolling. The United States Supreme Court
has held that the AEDPA’s statute of limitations is subject to equitable tolling.
Holland v. Florida, 560 U.S. 631, 645 (2010). Yet, “equitable tolling is unavailable in
most cases....” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999); accord Davis v.
Johnson, 158 F.3d 806, 811 (5th Cir. 1998) (holding that the AEDPA’s statute of
limitations can be equitably tolled “in rare and exceptional circumstances”). Indeed,
the Supreme Court held that “a petitioner is entitled to equitable tolling only if he
shows both that (1) he has been pursuing his rights diligently, and (2) some
extraordinary circumstance stood in his way and prevented timely filing.” Holland,
560 U.S. at 649 (internal quotation marks omitted). A habeas petitioner bears the
burden of proof to establish entitlement to equitable tolling. Alexander v. Cockrell,
294 F.3d 626, 629 (5th Cir. 2002). Here, Finch has not identified any evidence
53 Finch, 379 So. 3d at 27; R. Doc. 17-4 at 143.
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demonstrating that he is entitled to equitable holding, and this Court knows of no
reason that would support equitable tolling of the statute of limitations.
Finally, the Court notes that a petitioner can overcome the AEDPA’s statute
of limitations by making a convincing claim of “actual innocence” under McQuiggin
v. Perkins, 569 U.S. 383 (2013).54
In the instant case, Finch has not invoked McQuiggin. Rather, it appears that
he concedes his guilt.55 In the event he does so in any objections to this Report and
Recommendation, the undersigned finds that he has failed to make the showing
required under McQuiggin for the following reasons.
In assessing a claim of actual innocence, a court normally first examines the
evidence presented at trial and on which the petitioner’s conviction was based. See,
e.g., Johnson v. Cain, No. 14-543, 2015 WL 4528889, at *3 (E.D. La. July 27, 2015),
aff’d, 667 F. App’x 474 (5th Cir. 2016); Lyles v. Tanner, No. 13-655, 2014 WL 4674673,
at *6 (E.D. La. Sept. 17, 2014). Here, Finch was convicted of second-degree murder.
The Louisiana Fifth Circuit summarized the evidence as follows:
Ms. Etta Briscoe, the mother of the twenty-three year old victim,
testified that the defendant had a seven-year relationship with her
daughter, Tamika Moses, who was the mother of Finch’s three children.
Finch lived with Tamika at Ms. Briscoe’s house for some time. About
11:00 a.m. on September 16, 2001, Ms. Briscoe left her home to go to a
54 Actual innocence constitutes an “equitable exception” to the statute of limitations,
rather than an equitable basis on which to toll it. McQuiggin v. Perkins, 569 U.S. 383,
392 (2013) (emphasis original).
55 R. Doc. 1 at 11 (“Understanding these disorders also accounts for how and why
Randy’s and Tamika’s confrontation escalated, turned violent, and resulted in him
eventually killing her.”), 15 (“The evidence demonstrates that Mr. Finch did not go to
Tamika Moses’s home with the intention to kill her. His mental health disorders
allowed a volatile situation to fatally escalate.”).
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cousin’s house to get her hair done. Tamika was at home. Sometime later
she received a telephone call from Derika Jackson, a friend of Tamika,
who told her that Finch was at the house and Tamika was crying. Ms.
Briscoe went home immediately. Tamika’s father had just arrived at the
house and was standing in the doorway. Ms. Briscoe rushed past him to
Tamika’s bedroom. There she saw her daughter bleeding from a head
wound. Ms. Briscoe and Tamika’s father took her to the hospital
immediately. She was there about twenty minutes before she died.
Under cross-examination, Ms. Briscoe stated that she was never aware
of jealousy problems between Finch and Tamika. She denied knowing of
her daughter’s relationship with any other men.
Dr. James Traylor, a forensic pathologist who performed the autopsy on
Tamika, testified that Ms. Moses died from internal bleeding and
injuries caused by repeated blows to her abdominal area. Ms. Moses’
liver was lacerated or torn from front to back, the vein supplying blood
to her intestines was completely severed, and her right kidney had two
lacerations or tears. Ms. Moses also suffered a spiral fracture in her
upper right arm, abrasions to her left shoulder and on the left side of
her neck, and a bruise on her right breast.
Winnie Peter, the victim’s co-worker, testified that the defendant called
her several times after he left Ms. Moses’ apartment to inquire about
the victim’s condition. Ms. Peters further testified that he admitted he
repeatedly kicked Ms. Moses until she was unconscious.
Detective Danny Wharton, of the New Orleans Police Department,
testified that while he was at the scene of the beating, the telephone
rang and he answered it. A person identifying himself as “Randy” asked
for Tamika. Upon being told that Tamika was not there Randy asked
why the police were there. Detective Wharton then inquired if he had
had an altercation with Tamika. Randy responded “yes,” that he did
have an altercation. When told that he needed to come to the police
station to discuss the situation, Randy declined saying he would call
back. A short time later Randy called back wanting to know what was
wrong with Tamika. Detective Wharton informed him that he needed to
go to the station and that Tamika “may not make it.” Randy replied that
he did not know if he would come because he did not want to go to jail.
Ultimately, though, he turned himself in after a warrant had been
issued for his arrest.56
56 Finch 853 So. 3d at 681–82; R. Doc. 16-1 at 3–5.
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At the next step of an “actual innocence” analysis, a federal court then
considers the new evidence of actual innocence offered by the habeas petitioner.
Specifically, the United States Supreme Court has explained that, in order to assert
a 	credible 	claim 	of 	actual 	innocence, 	a petitioner is 	required “to 	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. Because such evidence is obviously
unavailable in the vast majority of cases, claims of actual innocence are rarely
successful.” Schlup v. Delo, 513 U.S. 298, 324 (1995).
Here, however, Finch has presented no new evidence whatsoever relating to
his factual innocence on the underlying crime to which he was found guilty. Without
such 	evidence, 	he 	simply 	cannot 	meet 	even 	“the 	threshold 	requirement” 	for
McQuiggin to apply, i.e. a showing that “‘in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.’”
McQuiggin, 	569 	U.S. 	at 	386 	(quoting 	Schlup, 	513 	U.S. 	at 	329). 	Accordingly,
McQuiggin does not aid him.
B. Subsection D
Finch claims that he is entitled to a delayed commencement under 28 U.S.C. §
2244(d)(1)(D).57 For the reasons that follow, Finch has failed to demonstrate that the
Subsection D is the appropriate statutory trigger for the federal limitations period.
57 R. Doc. 15-1 at 14–15.
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Subsection D provides for delayed commencement of the federal limitations
period when a petitioner’s claim is based on a factual predicate that could not have
been 	discovered 	earlier 	through 	the 	exercise 	of 	due 	diligence. 	28 	U.S.C. 	§
2244(d)(1)(D). Notably, this subsection does not delay the commencement of the
limitations period until the date on which the factual predicate of a claim was in fact
discovered or developed; rather, it delays§ commencement only until the date on
which it “could have been discovered through the exercise of due diligence.” 28 U.S.C.
§ 2244(d)(1)(D); see Manning v. Epps, 688 F.3d 177, 189–90 (5th Cir. 2012) (argument
that § 2244(d)(1)(D) runs from actual discovery of claim is an “untenable theory.”);
Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) (“the time commences when the
factual predicate ‘could have been discovered through the exercise of due diligence,’
not when it was actually discovered by a given prisoner ... [and] not when the prisoner
recognizes their legal significance.”).
The United States Fifth Circuit has held “that this means the date a petitioner
is on notice of the facts which would support a claim, not the date on which the
petitioner has in his possession evidence to support his claim.” In re Young, 789 F.3d
518, 528 (5th Cir. 2015) (citing Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir.
1998)). “Section 2244(d)(1)(D) does not convey a statutory right to an extended delay
… while a habeas petitioner gathers every possible scrap of evidence that might …
support his claim.” Galbraith v. Hooper, No. 22-30159, 2025 WL 2407275, at *8 (5th
Cir. Aug. 20, 2025) (citing Flanagan, 154 F.3d at 199).
As another court explained,
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The “test of due diligence under section 2244(d)(1)(D) is objective, not
subjective.” Petitioner must show why he was unable to discover
the factual predicate at an earlier date. Merely alleging that he
did not know the facts underlying his claim(s) is insufficient.
Several courts have equated the exercise of due diligence to a rule of
“inquiry notice.” In other words, when should a petitioner “have learned
of the new evidence” had he “exercised reasonable care.” The due
diligence standard “requires the petitioner to exercise the consideration
expected of a reasonably prudent person under similar circumstances.”
Matthews v. Louisiana, No. 18-589, 2021 WL 4484991, at *3 (M.D. La. Aug. 18, 2021)
(emphasis added; footnotes omitted), adopted, 2021 WL 4480990 (M.D. La. Sept. 29,
2021); accord Koon v. Cain, No. 13-2538, 2014 WL 120894, at *5 (W.D. La. Jan. 13,
2014) (“[L]imitations is not reckoned from the date petitioner discovered the factual
predicate of his claim, but rather from the date it ‘could have been discovered through
the exercise of due diligence ...’ [Section 2244(d)(1)(D)] and petitioner bears the
burden of establishing that date.” (italics omitted)); Dabbs v. Thaler, No. 3:12-CV-
0597, 2012 WL 4442414, at *3 (N.D. Tex. Sept. 5, 2012) (“The petitioner bears the
burden of establishing the applicability of section 2244(d)(1)(D), including his due
diligence.”), adopted, 2012 WL 4458402 (N.D. Tex. Sept. 26, 2012); Allen v. Hancock,
No. 1:11CV123, 2011 WL 7461993, at *2 (S.D. Miss. Nov. 9, 2011) (“Petitioner bears
the burden in establishing that he exercised due diligence in searching for a factual
predicate for his habeas claim.”), adopted, 2012 WL 728546 (S.D. Miss. Mar. 6, 2012),
certificate of appealability denied, No. 12-602000 (5th Cir. Aug. 8, 2012); Redmond v.
Jackson, 295 F. Supp. 2d 767, 772 (E.D. Mich. 2003) (“[A] habeas petitioner has the
burden of proof in establishing that he exercised due diligence in searching for the
factual predicate of the habeas claims.”).
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Finch appears to contend that the factual basis for his claims in his habeas
petition was unknown to him until he was evaluated by a psychiatrist in 2017, at
which time Dr. Johnson diagnosed him with a history of substance abuse, anxiety,
and post-traumatic stress disorder.58 Therefore, the “factual predicate” of Finch’s
claims is that his childhood history impacted his decision making and diminished his
culpability.
Finch misunderstands Subsection D and confuses his knowledge of the factual
predicate of his claims with the time permitted for gathering evidence in support of
that claim. “The relevant inquiry under Subsection D is not the date the fact in
question was actually discovered, but the date it could have been discovered
with reasonable diligence.” Roberts v. Cain, No. 14-2119, 2016 WL 7438489, at *6
(E.D. La. Dec. 27, 2016) (emphasis added), certificate of appealability denied, No. 17-
30020, 2017 WL 6811900 (5th Cir. Oct. 12, 2017). Thus, the limitations period would
not run from the date on which Finch had in his possession all evidence to support
his claims, but rather the date on which Finch could have discovered the evidence
through the exercise of due diligence.
There is no question that Finch and his family members were aware of his
childhood history at the time of his sentencing. The information in the affidavits of
Finch, his siblings, and cousin, which Dr. Johnson reviewed in evaluating Finch,
could have been presented at his sentencing. 59 Thus, evidence regarding Finch’s
58 R. Doc. 1 at 10–11.
59 R. Doc. 14-2 at 354–59, Affidavit from Randy Finch, 2/9/17; id. at 550–53, Affidavit
of Rhonda Finch, 2/3/17; id. at 554–55, Affidavit of Terry Finch, 2/7/15; id. at 556–58,
affidavit of Ronnie Finch, Jr., 2/9/17.
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childhood does not constitute a new factual predicate that would alter the beginning
date of the AEDPA one-year statute of limitations.
Additionally, it appears that Finch’s most recent post-conviction counsel was
retained in early 2017, and that she arranged a psychological evaluation of Finch
related to his murder conviction.60 Finch has offered no explanation as to why he
could not have undergone an evaluation earlier. See Allen, 2011 WL 7461993, at *2
(finding that to meet the burden under Subsection D, a petitioner “must offer an
explanation of why the factual predicate could not have been discovered earlier and
steps, if any, that were taken to discover his claim.”).
On this record, the Court concludes that Finch was aware of his childhood
history and could have presented it at his sentencing hearing. Further, had Finch
exercised due diligence, he could have undergone a psychological evaluation to
provide a mental health context for his behavior sometime before the nearly fifteen
years that followed his conviction. See also Flanagan, 154 F.3d at 199 (finding it well
established that § 2244(d)(1)(D) does not “convey a statutory right to an extended
delay ... while a habeas petitioner gathers every possible scrap of evidence that might
... support his claim.”). For these reasons, Finch has failed to present a basis for the
Court to apply the § 2244(d)(1)(D) factual predicate trigger in his case.
Because Finch is not entitled to further statutory tolling, and because he has
not established that he is eligible for equitable tolling or that he is actually innocent,
60 See R. Doc. 14-2 at 542, Independent Psychiatric Evaluation by Dr. Johnson, 2/9/17
(“Pursuant to a request by Emily Posner, attorney for the defendant, I interviewed
Mr. Randy Finch for the purpose of assessing his current and past psychiatric
functioning.”).
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his federal application for habeas corpus relief had to be filed no later than November
2, 2007, in order to be timely. Because his application was filed February 14, 2025, it
was untimely. Therefore, his federal habeas corpus petition must be dismissed with
prejudice.
RECOMMENDATION
It 	is 	therefore 	RECOMMENDED 	that 	Randy 	Finch’s 	application 	be
DISMISSED WITH PREJUDICE as time-barred.
A party’s failure to file written objections to the proposed findings, conclusions,
and recommendation in a magistrate judge’s report and recommendation within
fourteen (14) days after being served with a copy shall bar that party, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district court, provided that the party
has been served with notice that such consequences will result from a failure to
object. 28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass’n, 79 F.3d 1415,
1430 (5th Cir. 1996) (en banc).
New Orleans, Louisiana, this 6 th day of November, 2025.
__________________________________________
EVA J. DOSSIER
UNITED STATES MAGISTRATE JUDGE
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