McIntosh v. State of Mississippi et al
Filing
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MEMORANDUM OPINION re 11 Order on Motion to Dismiss. Signed by Michael P. Mills on 8/26/13. (mhg)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
CLINTON A. MCINTOSH
PETITIONER
vs.
CIVIL ACTION NO.: 1:13CV100-MPM-JMV
STATE OF MISSISSIPPI, et al.
RESPONDENTS
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on the pro se petition of Clinton McIntosh,
Mississippi prisoner no. 19078, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Respondents have moved to dismiss the petition, and Petitioner has responded to Respondents’
motion to dismiss. The matter is now ripe for resolution. For the reasons set forth below,
Respondents’ motion will be granted, and the instant petition will be dismissed as untimely filed
under 28 U.S.C. § 2244(d).
Facts and Procedural Background
Petitioner was convicted of murder in the Circuit Court of Chickasaw County,
Mississippi, and was sentenced on March 19, 1992, to serve a life sentence in the custody of the
Mississippi Department of Corrections. (See Respt’s Mot. to Dismiss, Ex. A). On September
21, 1999, the Mississippi Court of Appeals affirmed his conviction and sentence. (See id., Ex. B;
see also McIntosh v. State, 749 So.2d 1235 (Miss. Ct. App. 1999) (Cause No. 97-KA-00895COA). It does not appear that Petitioner sought further review of his conviction and sentence
until 2007, when he filed what was construed as a petition for post-conviction relief. The
Mississippi Supreme Court dismissed the petition as untimely. (See, e.g., Respt’s Mot. to
Dismiss, Exs. C and D). Petitioner subsequently filed three motions for rehearing, all of which
were dismissed by the Mississippi Supreme Court. (See, e.g., id., Exs. E, F, G, H, and I). The
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Petitioner filed the instant petition on or about May 18, 2013.
Law and Analysis
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), which carries a
one-year limitations period, governs federal habeas petitions filed after statute’s effective date.
See, e.g., Robertson v. Cain, 324 F.3d 297, 301 (5th Cir. 2003). Petitioner maintains that the oneyear statute of limitations is inapplicable to his case, as he was sentenced in 1992, prior to the
passage of the AEDPA. However, the AEDPA governs all petitions filed after the statute’s
effective date. Lindh v. Murphy, 521 U.S. 320, 324-26 (1997). The AEDPA is applicable to the
instant petition.
The issue of whether Respondents’ motion should be granted turns on 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 post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending
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shall not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d)(1) and (2).
At the outset, the Court finds that the limited exceptions as set forth in § 2444 (d)(1)(BD) are not implicated in this case. Therefore, the Court considers when Petitioner’s judgment
“became final” for purpose of the AEDPA. A state judgment generally becomes final “upon
denial of certiorari by the Supreme Court or expiration of the time” to seek it. Ott v. Johnson,
192 F.3d 510, 513 (5th Cir. 1999). When a petitioner fails to seek discretionary review in State
court, however, he “stops the appeal process.” Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir.
2003). When Petitioner failed to timely a file a petition for rehearing following the September
21, 1999, judgment of the Mississippi Court of Appeals, he stopped the appeal process and was
unable to seek further direct review of his conviction and sentence by way of a petition for writ
of certiorari with either the Mississippi Supreme Court or the United States Supreme Court. As
such, his conviction became final when the time expired for him to seek such review, which was
October 5, 1999 – fourteen days after his convictions were affirmed. See Miss. R. App. P. 40;
see also Gonzalez v. Thaler, ___ U.S. ___, 132 S. Ct. 641, 653-54 (2012) (holding that when a
petitioner does not pursue direct review all the way to the Supreme Court, “the judgment
becomes final at the ‘expiration of the time for seeking such review’-when the time for pursuing
direct review in this Court, or in state court, expires”). Therefore, absent statutory or equitable
tolling, Petitioner’s petition for federal habeas relief was due on or before October 5, 2000, to be
deemed timely.
Petitioner’s first post-conviction filing did not occur until August of 2007. Inasmuch as
Petitioner did not seek post-conviction relief in State court until well after the expiration of the
one-year deadline prescribed by the AEDPA, he is not entitled to statutory tolling for the period
of time that his post-conviction application was pending. See 28 U.S.C. § 2244(d)(2) (tolling the
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federal statute of limitations while a “properly filed” application is pending). Therefore, federal
habeas relief is available to him only if he can demonstrate that his case involves “rare and
exceptional circumstances” that would warrant an equitable tolling of the limitations period.
Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citations omitted).
Petitioner appears to argue the instant petition should not be found time-barred because
his trial counsel was ineffective. He notes that his counsel failed to file a motion for rehearing
following the denial of his appeal, which stopped the appeal process. Petitioner’s argument does
not, however, provide a justification for why Petitioner failed to timely file for post-conviction
relief. While equitable tolling is available “if the [petitioner was] actively misled by the
defendant about the cause of action or [was] prevented in some extraordinary way from asserting
his rights,” there is no reasonable basis in the record to conclude that either circumstance is
applicable to Petitioner’s delay. Lookingbill v. Cockrell, 293 F.3d 256, 264 (5th Cir. 2002)
(citations omitted).
Petitioner’s federal habeas petition was “filed” on or about May 18, 2013, which is the
date of the postage stamp affixed to the mailing envelope. See Coleman v. Johnson, 184 F.3d
398, 401 (5th Cir. 1999) (holding that the “mailbox rule” deems a pro se prisoner’s petition filed
on the date it is delivered to prison officials for mailing). The instant petition was filed over
twelve years after the October 5, 2000, AEDPA deadline. Accordingly, the instant petition will
be dismissed as untimely.
Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, this Court must issue or
deny a certificate of appealability (“COA”) upon the entry of a final order adverse to Petitioner.
A petitioner must obtain a COA before appealing a district court’s decision denying federal
habeas relief. See 28 U.S.C. § 2253(c)(1). A COA may only issue if a petitioner has made a
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substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where a
petitioner’s constitutional claims are denied on the merits, the petitioner may obtain a COA only
by demonstrating “that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where
a petition is rejected on procedural grounds, without an assessment of the underlying
constitutional claims, a COA will issue only where the petitioner shows “that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Id. Applying this standard, the Court concludes that a COA should be denied
in this case.
Conclusion
The Court GRANTS Respondents’ “Motion to Dismiss Pursuant to § 2244(d)” and
DISMISSES with prejudice the petition filed in this cause. For the reasons set forth in this
opinion and order, the Court further ORDERS that a certificate of appealability be denied, as
Petitioner failed to show his petition timely and to make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
SO ORDERED this the 26th day of August, 2013.
/s/ Michael P. Mills
CHIEF JUDGE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
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