Alford v. King et al

Filing 8

MEMORANDUM OPINION re 7 Final Judgment Dismissing Case. Signed by Michael P. Mills on 4/14/2011. (lpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
LASHARIS ALFORD,

PETITIONER

v.

No. 1:10CV323-M-S

WARDEN RON KING, ET AL.

RESPONDENTS

MEMORANDUM OPINION
This matter comes before the court on the pro se petition of Lasharis Alford for a writ of
habeas corpus under 28 U.S.C. § 2254. The state has moved to dismiss the petition as untimely
filed, and the petitioner has responded. The matter is ripe for review. For the reasons set forth
below, the instant petition for a writ of habeas corpus shall be DISMISSED with prejudice as
untimely filed under 28 U.S.C. § 2244(d).
Facts and Procedural Posture
The Circuit Court of Clay County, Mississippi, entered judgment against the petitioner for
murder (Count I) and possession of a firearm by a convicted felon (Count II). The court sentenced
the Alford on the murder charge to serve life without parole in the custody of the Mississippi
Department of Corrections – and three years without parole on the felon in possession charge.
The sentences run consecutively. Alford appealed his convictions and sentences to the
Mississippi Supreme Court, which affirmed the trial court’s decision. Alford v. State, 5 So.3d
1138 (Miss. App. 2008), reh’g. denied December 16, 2008, cert. denied April 9, 2009 (Cause No.
2007-KA-00241-COA). On June 17, 2010, Alford filed with the Mississippi Supreme Court an
Application for Leave to File a Motion for Post-Conviction Collateral Relief. The court denied
the motion on October 6, 2010. Alford filed the instant federal petition for a writ of habeas
corpus on December 13, 2010.

Discussion
Decision in this case is governed by 28 U.S.C. § 2244(d), which provides:

(d)(1) 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 the laws of the United 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.
(2) The time during which a properly filed application for State postconviction 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)(1) and (2).
Alford’s conviction became final 90 days after the Mississippi Supreme Court’s April 9,
2009, denial of his petition for certiorari. Alford did not seek a writ of certiorari to the United
States Supreme Court. As such, ninety (90) days, the time period during which Alford could have
sought such review, is added to the date on which Petitioner’s direct appeal ended and his
convictions and sentences became final on July 8, 2009 (April 9, 2009 + 90 days). See Rule of the
United States Supreme Court 13(1); see also Roberts v. Cockrell, 319 F.3d 690 (5th Cir. 2003).
Therefore, the initial deadline for the petitioner to submit a state application for post-conviction
relief under 28 U.S.C. § 2244(d)(2) – and thus toll the federal one-year statute of limitations –
was July 8, 2010. Flannagan v. Johnson, 154 F.3d 196, 201 (5th Cir. 1998); Davis v. Johnson,

158 F.3d 806 (5th Cir. 1998). Alford did, however, file an application for post-conviction
collateral relief on June 17, 2010 – before the expiration of the federal one-year limitations period.
The federal statute was tolled (and the federal deadline extended) during the time the state
application was pending, from June 17, 2010 to October 6, 2010 – a total of 111 days. Therefore,
the ultimate deadline for Alford to have filed his federal petition for habeas corpus relief expired
on October 27, 2010 (July 8, 2010 + 111 days).
Under the “mailbox rule,” the instant pro se federal petition for a writ of habeas corpus is
deemed filed on the date the petitioner delivered it to prison officials for mailing to the district
court. Coleman v. Johnson, 184 F.3d 398, 401, reh’g and reh’g en banc denied, 196 F.3d 1259
(5th Cir. 1999), cert. denied, 529 U.S. 1057, 120 S. Ct. 1564, 146 L.Ed.2d 467 (2000) (citing
Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998)). In this case, the federal petition was thus
filed sometime between the date it was signed on December 3, 2010, and the date it was received
and stamped as “filed” in this court on December 13, 2010. Giving the petitioner the benefit of
the doubt, the instant petition was filed 37 days after the October 27, 2010 filing deadline. The
petitioner does not allege any “rare and exceptional” circumstance to warrant equitable tolling.
Ott v. Johnson, 192 F.3d at 513-14. The instant petition will therefore be dismissed with
prejudice and without evidentiary hearing as untimely filed under 28 U.S.C. § 2244(d). A final
judgment consistent with this memorandum opinion shall issue today.
SO ORDERED, this the 14th day of April, 2011.
/s/ MICHAEL P. MILLS
CHIEF JUDGE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI