Morris Frith v. Christopher Epps, Commissioner

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Morris Frith v. Christopher Epps, Commissioner Doc. 0 Case: 09-60186 Document: 00511216076 Page: 1 Date Filed: 08/26/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED August 26, 2010 N o . 09-60186 S u m m a r y Calendar Lyle W. Cayce Clerk M O R R I S R. FRITH, Petitioner - Appellant v. C H R I S T O P H E R B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT O F CORRECTIONS, Respondent - Appellee A p p e a l from the United States District Court for the Southern District of Mississippi U S D C No. 3:08-CV-484 B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* M o r r is R. Frith, Mississippi prisoner #R0419, appeals the dismissal of his 2 8 U.S.C. 2254 petition as untimely. He argues that the Antiterrorism and E ffe c t iv e Death Penalty Act of 1996 ("AEDPA") limitations period did not expire b e c a u s e he had filed a motion to reconsider his sentence in state court. We g r a n t e d a certificate of appealability ("COA") to determine whether Frith's 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 09-60186 Document: 00511216076 Page: 2 Date Filed: 08/26/2010 No. 09-60186 m o t io n to reconsider his sentence prevented the statute of limitations from r u n n in g or tolled the limitations period under 28 U.S.C. 2244(d)(1) or (d)(2).1 F o r the following reasons, we AFFIRM the district court's dismissal of Frith's h a b e a s petition as time-barred. I. Factual & Procedural Background F rith pleaded guilty to attempted rape, armed robbery, and grand larceny. On February 19, 1997, Frith was sentenced to serve consecutive sentences of ten y e a r s imprisonment for attempted rape, ten years imprisonment for armed r o b b e r y , and five years imprisonment for grand larceny. On February 28, 1997, F r ith filed a motion to reconsider his sentence in the Mississippi circuit court. The court apparently never ruled on the motion. Frith did not file a direct a p p e a l. On February 10, 2000, Frith filed a petition for state habeas relief in M is s is s ip p i circuit court. The court held an evidentiary hearing and s u b s e q u e n t ly denied relief. The state appeals court affirmed on October 2, 2007, a n d denied Frith's petition for rehearing on February 5, 2008. The Mississippi S u p r e m e Court initially granted Frith's petition for writ of certiorari, but d is m is s e d that petition on June 9, 2008, as improvidently granted. On August 6, 2008, Frith filed the instant 2254 petition in federal d is t r ic t court. The magistrate judge issued a report recommending that Frith's p e t it io n be dismissed as untimely. The magistrate judge concluded that, under 2254(d)(1), the statute of limitations began running on March 21, 1997, thirty d a y s after Frith pleaded guilty, and expired on March 23, 1998. The magistrate ju d g e determined that Frith's motion to reconsider his sentence was not a We denied Frith a COA on the issue of whether the limitations period should be equitably tolled. On appeal, we address only the narrow issue on which the COA was granted; all other grounds for relief are not properly before this court. See Kiser v. Johnson, 163 F.3d 326, 327 n.1 (5th Cir. 1999). 1 2 Case: 09-60186 Document: 00511216076 Page: 3 Date Filed: 08/26/2010 No. 09-60186 m o t io n for post-conviction or other collateral relief under 2244(d)(2) because it requested reconsideration of the sentence and did not collaterally challenge t h e merits of the guilty plea or the sentence imposed. The magistrate judge fu r t h e r stated that Frith's application for state habeas relief did not toll the lim it a t io n s period because it was not filed until February 10, 2000, well after the o n e -y e a r limitations period expired on March 23, 1998. Frith filed objections to the magistrate judge's report and recommendation, a r g u in g that his motion to reconsider his sentence sought collateral relief and t h a t the motion prevented the limitations period from running under 2244(d). The district court overruled Frith's objections and adopted the magistrate judge's r e p o r t and recommendation. Following the district court's denial of Frith's m o t io n s for reconsideration and for a COA, Frith moved for a COA in this court. We granted a COA solely on the issue of "whether the motion to reconsider his s e n te n c e prevented the statute of limitations from beginning to run or tolled the p e r io d pursuant to 28 U.S.C. 2244(d)(1) or (2)."2 I I . Standard of Review W e review a district court's denial of habeas relief on procedural grounds d e novo. Larry v. Dretke, 361 F.3d 890, 893 (5th Cir. 2004). AEDPA, which g o v e r n s Frith's petition, established a one-year statute of limitation for federal h a b e a s petitions brought by state prisoners. 28 U.S.C. 2244(d)(1). The lim it a t io n s period usually begins to run from the date the state court judgment b e c o m e s final after direct appeal, or the time for seeking such review expires. 2244(d)(1)(A). Under 2244(d)(2), however, the limitations period is tolled d u r in g the time in which "a properly filed application for State post-conviction o r other collateral review" is pending. Whether the AEDPA time limits have In the same order, we also granted Frith's motion for leave to proceed in forma pauperis. 2 3 Case: 09-60186 Document: 00511216076 Page: 4 Date Filed: 08/26/2010 No. 09-60186 b e e n satisfied is a question of federal, rather than state, law. Roberts v. Cockrell, 3 1 9 F.3d 690, 693 (5th Cir. 2003). III. Discussion Frith asserts that his motion to reconsider his sentence prevented the s t a t u te of limitations from running or tolled the statute of limitations under 2 2 4 4 (d )(1 ) or (d)(2). We disagree. A. Section 2244(d)(1)(A) U n d e r 2244(d)(1)(A), a state court judgment becomes final at "the c o n c lu s io n of direct review or the expiration of the time for seeking such review." R o b e r ts , 319 F.3d at 693; Jimenez v. Quarterman, 129 S. Ct. 681, 685 (2009). The Supreme Court has held that "direct review cannot conclude for purposes o f 2244(d)(1)(A) until the availability of direct appeal to the state courts and t o [the Supreme Court] has been exhausted." Jimenez, 129 S. Ct. at 685 (internal q u o t a t io n marks and citations omitted). "If the conviction does not become final b y the conclusion of direct review, it becomes final by `the expiration of the time fo r seeking such review.'" Roberts, 319 F.3d at 694 (quoting 2244(d)(1)(A)). In this case, Frith did not seek direct review of his guilty plea. Accordingly, his judgment of conviction became final on March 21, 1997, thirty d a y s after he was sentenced on his guilty plea. See MISS. R. APP. P. 4(a) (stating t h a t a defendant has thirty days to file a notice of appeal from the date of entry o f the criminal judgment). Thus, the one-year statute limitations for AEDPA p u r p o s e s began running on March 21, 1997, and concluded on March 23, 1998.3 The Respondent contends, and the magistrate judge and district court agreed, that the limitations period was extended for two days because the limitations period otherwise would have expired on a Saturday. 3 4 Case: 09-60186 Document: 00511216076 Page: 5 Date Filed: 08/26/2010 No. 09-60186 F r it h asserts that his habeas petition was nonetheless timely under 2244(d)(1)(A) because he filed a motion for reconsideration in the state court.4 C o n s t r u in g Frith's brief generously, Frith is arguing that because his motion for r e c o n s id e r a tio n was never ruled upon and has been pending for over thirteen y e a r s , his state-court judgment never became final for purposes of 2244(d)(1)(A). This argument lacks merit. While the Mississippi circuit court did not r u le -- a n d apparently has not yet ruled--on Frith's motion for reconsideration, Mississippi law makes clear that the circuit court lacked jurisdiction to decide t h e motion because it was filed after the term of the court ended. The M is s is s ip p i circuit court's term ended on February 26, 1997, and Frith did not file his motion for reconsideration until February 28, 1997. Accordingly, the c ir c u it court lacked jurisdiction to entertain Frith's motion for reconsideration a n d the motion did not affect the court's entry of final judgment. See Ducote v. S ta te , 970 So. 2d 1309, 1314 (Miss. Ct. App. 2007) (holding that the circuit court la c k e d jurisdiction to entertain the prisoner's motion to reconsider his sentence b e c a u s e "[a] judge may not alter or vacate a sentence once the term of court the d e fe n d a n t was sentenced in has ended, thus [the petitioner] was four days late, fo r jurisdictional purposes, in filing his motion. Further, this motion could not b e considered `pending' under [Mississippi law] because the motion was not filed b e fo r e the term of court ended").5 Accordingly, we conclude that Frith's motion Frith did not argue in the district court and does not argue on appeal that his habeas petition is timely under any of the other provisions set forth in 2244(d)(1)(B)-(D). Accordingly, we do not address the applicability of these provisions. Frith does not argue that Mississippi courts have jurisdiction to entertain motions for reconsideration filed after the term of the court has ended or that such a motion would, under Mississippi law, affect the finality of Frith's conviction. Accordingly, this case is distinct from the issue we confronted in Wilson v. Cain, 564 F.3d 702, 706 (5th Cir. 2009). 5 4 5 Case: 09-60186 Document: 00511216076 Page: 6 Date Filed: 08/26/2010 No. 09-60186 fo r reconsideration did not prevent the statute of limitations from beginning to r u n under 2244(d)(1)(A). B. Section 2244(d)(2) F r it h also argues that his motion for reconsideration was a motion for p o s t -c o n v ic t io n relief, tolling the statute of limitation under 2244(d)(2). Section 2 2 4 4 (d )(2 ) provides that the one-year statute of limitations is tolled during the p e n d e n c y of an "application for State post-conviction or other collateral review." U n d e r Mississippi law, post-conviction relief is available only if the prisoner a lle g e s one of nine enumerated grounds. (2 0 0 7 )(s p e c ify in g grounds). Frith did not allege any grounds for post-conviction relief in his motion for r e c o n s id e r a tio n ; rather, he simply requested--without explanation--that the M is s is s ip p i circuit court reconsider his sentence. Because Frith's motion for MISS. CODE ANN. 99-39-5(1) r e c o n s id e r a tio n did not request post-conviction relief under Mississippi law, the m o t io n did not toll the statute of limitations under 2244(d)(2). See Gaddy v. B r e w e r , No. 1:01-CV-59, 2010 WL 3025027, at *3 (S.D. Miss. July 30, 2010) (" G a d d y did not make any of these allegations [contained in 99-39-5(1)] in his s e c o n d Motion to Reconsider Sentence; rather, he merely requested that the C o u r t follow the district attorney's recommendation and afford him leniency . . . . Therefore, his motion was not a motion for post-conviction relief under M is s is s ip p i law, and the motion did not toll the limitations period pursuant to S e c tio n 2244(d)(2).").6 F r it h asserts that other Mississippi courts have construed a motion to r e c o n s id e r a sentence as a motion for post-conviction relief. But those cases are e a s ily distinguished because, in those cases, the motion, while styled as a motion Because we conclude that Frith's motion for reconsideration was not a motion for "post-conviction or other collateral review," we need not consider whether his motion was properly filed. 6 6 Case: 09-60186 Document: 00511216076 Page: 7 Date Filed: 08/26/2010 No. 09-60186 fo r reconsideration, raised claims seeking post-conviction relief under 99-395 (1 ). See Ducote, 970 So. 2d at 1312 (construing the motion for reconsideration a s a motion for post-conviction relief where the motion, inter alia, asserted that t h e defendant's guilty plea was not voluntary or intelligent); Houston v. State, 8 4 0 So. 2d 818, 819 (Miss. Ct. App. 2003) ("[W]e find that review of the H o u s t o n s 's motion for reconsideration of sentence falls under MISS. CODE ANN. 99-39-5 concerning post-conviction relief . . . ."); Moore v. State, 859 So. 2d 1 0 1 8 , 1019 (Miss. Ct. App. 2003) (construing prisoner's declaratory judgment a c t io n asserting that his prior conviction was void as a motion for post-conviction r e lie f under MISS. CODE ANN. 99-39-5). B y contrast, Frith's motion simply asked for reconsideration of his s e n te n c e without citing any reasons, grounds, statutes, or rules.7 Because his m otion for reconsideration of his sentence did not collaterally attack his sentence o r otherwise raise grounds for post-conviction relief, his motion did not toll A E D P A 's statute of limitations under 2244(d)(2). I V . Conclusion For the foregoing reasons, we AFFIRM the judgment of the district court. The State points the court to the decision of the Eleventh Circuit in Alexander v. Sec'y, Dep't of Corr., 533 F.3d 1291, 1297 (11th Cir. 2008) (holding that a motion to review the sentence was not a motion for postconviction or collateral relief) and cites Robinson v. Golder, 443 F.3d 718, 720-21 (10th Cir. 2006) (concluding that a motion for reduction of sentence under Colorado Rule of Criminal Procedure 35(b) was a tolling motion). While other circuits have disagreed about whether motions for reduction or review of a sentence constitute tolling motions, no circuit has held that a bare motion for reconsideration--without citation to a state statute or rule and containing no specified grounds for relief--is sufficient to toll the statute of limitations under 2244(d)(2). We express no opinion on whether the outcome in this case would change if Frith's motion for reconsideration contained more detail. 7 7

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