Mueller v. Morris et al

Filing 8

MEMORANDUM OPINION re 7 Final Judgment re 6 Motion to Dismiss. Signed by Michael P. Mills on 11/25/13. (cr) Modified on 11/25/2013 (dlh).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
RONALD ALAN MUELLER

PETITIONER

v.

No. 1:13CV60-M-A

TIMOTHY MORRIS, ET AL.

RESPONDENTS

MEMORANDUM OPINION
This matter comes before the court on the March 22, 2013, petition of Ronald Alan Mueller
for a writ of habeas corpus under 28 U.S.C. § 2254. The State has moved to dismiss the petition as
untimely filed under 28 U.S.C. § 2244(d), or in the alternative, as procedurally barred. Mueller has
not responded to the petition, and the deadline for response has expired. For the reasons set forth
below, the State’s motion will be granted and the instant petition for a writ of habeas corpus dismissed
as untimely filed.
Facts and Procedural Posture
Petitioner Mueller pled guilty to conspiracy to manufacture methamphetamine in the Circuit
Court of Itawamba County, Mississippi. On January 22, 2010, Mueller was sentenced to serve a term
of twenty (20) years in the custody of the Mississippi Department of Corrections. Mueller is currently
of the Mississippi Department of Corrections and housed in the South Mississippi Correctional
Institution in Leakesville, Mississippi. By statute, there is no direct appeal from a guilty plea. See
Miss. Code Ann. ' 99-35-101. Mueller filed a AMotion for Post-Conviction Collateral Relief@ in the
Circuit Court of Itawamba County, which he signed on January 19, 2011. On February 28, 2011, the
trial court granted his motion to the extent that he was entitled to credit for the time he served in the
Intensive Supervision Program, but denied his motion with regard to the remainder of his claims.
Mueller appealed this decision to the Mississippi Supreme Court, and the matter was assigned to the
Mississippi Court of Appeals and docketed as Cause No. 2011-CP-00553-COA. On August 23, 2011,
the Mississippi Supreme Court Clerk issued a AShow Cause Notice@ informing Mueller that, if he

wished to proceed with his appeal, he must file his appellate brief within fourteen (14) days. On
September 15, 2011, Mueller=s appeal was dismissed for failure to file the brief of the appellant. The
state supreme court=s mandate issued on October 6, 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).
Mueller=s conviction and sentence became final one year from the date on which he was
sentenced, January 22, 2010. As Mueller filed an application for post-conviction relief as
contemplated by 28 U.S.C. ' 2244(d)(2) on or before January 22, 2011, the limitations period was
tolled during the pendency of the application. Grillete, 372 F.3d at 769; Flannagan v. Johnson, 154
F.3d 196, 201 (5th Cir. 1998); Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998). Mueller is entitled to
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tolling for the pendency of the application, a total of 260 days (January 19, 2011, through October 6,
2011.) As such, Mueller=s federal habeas petition was due in this Court on or before October 10,
2011.1
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)). Mueller did not sign the instant petition,
but it was dated March 19, 2013, in the prison mail room. Thus, the federal petition was filed
sometime between March 19, 2013, and the date it was received and stamped as “filed” in the
district court on March 22, 2013. Giving the petitioner the benefit of the doubt by using the
earlier date, the instant petition was filed 526 days after the October 10, 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 shall 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 25th day of November, 2013.

/s/ MICHAEL P. MILLS
CHIEF JUDGE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI

1

The calculations result in a date of October 9, 2011, which fell on a Sunday. Therefore,
Mueller=s petition would have been due on or before the next available business day, Monday, October
10, 2011.
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