Nichols v. Hood
Filing
13
MEMORANDUM OPINION re 12 Judgment. Signed by Michael P. Mills on 3/13/13. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
LONZIE EARL NICHOLS, JR.
v.
PLAINTIFF
No. 1:12CV4-M-V
JIM HOOD, ET AL.
DEFENDANTS
MEMORANDUM OPINION
This matter comes before the court on the petition of Lonzie Earl Nichols, Jr. for a writ of
habeas corpus under 28 U.S.C. § 2254. The State has moved to dismiss the petition as untimely
filed. Nichols has not responded to the motion, and the deadline for response has expired. For
the reasons set forth below, the State’s motion will be granted and the petition dismissed as
untimely filed under 28 U.S.C. § 2244(d).
Facts and Procedural Posture
Lonzie Nichols is in the Mississippi Department of Corrections and is currently housed at
the Marshall County Correctional Facility in Holly Springs, Mississippi. Nichols was convicted
of one count of Murder in the Circuit Court of Clay County, Mississippi. On October 11, 2007,
he was sentenced to serve life in custody of the Mississippi Department of Corrections. His
conviction and sentence were affirmed by the Mississippi Supreme Court. Nichols v. State,27
So.3d 433 (Miss. Ct. App. 2009) reh’g denied, Nov. 10, 2009, cert. denied, Feb. 11, 2010 (Cause
No. 2007-KA-02256-COA). Nichols filed a petition for a writ of certiorari in the United States
Supreme Court, which was denied on October 4, 2010. Nichols filed an “Appellant’s Brief with
New Disclosed Evidence Seeking A Evidentiary Hearing” in the Mississippi Court of Appeals
on September 29, 2011. The document had no dated signature. That court treated the filing as a
motion for post-conviction relief and denied the motion on November 30, 2011.
One-Year Limitations Period
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).
Nichols’ motion for post-conviction collateral relief was filed within the one-year time
limitation period prescribed by the Antiterrorism and Effective Death Penalty Act. As such, the
statute of limitations for his federal petition for a writ of habeas corpus is tolled for the pendency
of his state post-conviction motion. As Nichols’ motion was neither signed nor dated, the court
has calculated the signature date by allowing the standard three days for U.S. mail delivery.
Calculated thus, the statute of limitations was tolled for sixty-five days from the day his one-year
time limitation period would have originally expired, October 4, 2011. Nichols’ habeas corpus
petition was due by December 8, 2011.
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
filed sometime between the date it was signed on December 29, 2011, and the date it was
received and stamped as “filed” in the district court on January 4, 2012. Giving the petitioner
the benefit of the doubt by using the earlier date, the instant petition was filed 21 days after the
December 8, 2011, 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 thus 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 will
issue today.
SO ORDERED, this the 13th day of March, 2013.
/s/ MICHAEL P. MILLS
CHIEF JUDGE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
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