Doss v. Outlaw et al
Filing
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MEMORANDUM OPINION re 6 Final Judgment. Signed by District Judge Sharion Aycock on 1/31/14. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
SHAWN DOSS,
v.
PETITIONER
CIVIL ACTION NO.: 1:13cv172-SA-JMV
TIMOTHY OUTLAW and ATTORNEY GENERAL
OF THE STATE OF MISSISSIPPI,
RESPONDENTS
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on the pro se petition of Shawn Doss, a Mississippi
inmate housed at the Marshall County Correctional Facility, in Holly Springs, Mississippi, for a
writ of habeas corpus under 28 U.S.C. § 2254. Respondents have moved to dismiss the petition
as time-barred pursuant to 28 U.S.C. § 2244. Petitioner has not responded to the motion to
dismiss, and the time to respond has expired. For the reasons set forth below, Respondents’
motion is granted, and the instant petition will be dismissed with prejudice.
Facts and Procedural History
On November 18, 2008, Petitioner pleaded guilty to one count of possession of
marijuana, greater than thirty grams, with intent to sell in the Circuit Court of Lowndes County,
Mississippi. On November 21, 2008, he was sentenced as an enhanced offender, pursuant to
Miss. Code Ann. § 41-29-139 and § 41-29-147, to serve fifty years in the custody of the
Mississippi Department of Corrections. (See Resp’ts Mot., Ex. A). On or about November 16,
2011, Petitioner filed a motion for post-conviction relief in the Circuit Court of Lowndes
County. (See id., Ex. B). That court denied Petitioner’s motion, and he subsequently filed an
appeal in the Mississippi Supreme Court. (See id., Ex. C). On November 27, 2012, the
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Mississippi Court of Appeals affirmed the judgment of the circuit court in a written opinion.
(See id., Ex. D); see also Doss v. State, 119 So. 3d 1070 (Miss. Ct. App. 2012), reh’g denied,
April 30, 2013, cert. denied, Aug. 22, 2013 (Cause No. 2011-CP-01870-COA). Petitioner filed
the instant federal habeas action on or about September 16, 2013.
On November 15, 2013, Respondents filed a motion to dismiss the instant action, arguing
that the petition is untimely under 28 U.S.C. § 2244(d). Petitioner did not respond to the motion.
Legal Standard
The instant petition for writ of habeas corpus is subject to the statute of limitations of the
Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Egerton v. Cockrell, 334
F.3d 433, 436 (5th Cir. 2003). The issue of whether Respondent’s motion should be granted turns
on the statue’s limitation period, 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.
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28 U.S. C. § 2244(d)(1). The federal limitations period is tolled while a “properly filed
application for State post-conviction or other collateral review” is pending. See 28 U.S.C. §
2244(d)(2). In “rare and exceptional circumstances,” the limitations period may be equitably
tolled. Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citations omitted).
Analysis
Under Mississippi statutory law, there is no direct appeal from any guilty plea taken after
July 1, 2008. See Miss. Code Ann. § 99-35-101; see also Seal v. State, 38 So. 3d 635 (Miss. Ct.
App. 2010). Petitioner entered a guilty plea in November 2008. Therefore, Petitioner’s
conviction became final on November 21, 2008, when he was sentenced on his guilty plea. See
Roberts v. Cockrell, 319 F.3d 690 (5th Cir. 2003) (holding that a judgment becomes final “by the
conclusion of direct review or the expiration of the time for seeking such review”).1 Absent
statutory or equitable tolling, Petitioner’s petition for federal habeas relief was due on or before
November 23, 2009, to be deemed timely.2
By the time Petitioner filed for post-conviction relief in State court on November 16,
2011, the federal statue of limitations had already run against him. As such, he is not entitled to
statutory tolling of the federal statute of limitations during the pendency of his post-conviction
motion. Petitioner’s federal habeas petition was “filed” sometime between the date it was signed
on September 9, 2013, and the date it was stamped “filed” by this Court on September 16, 2013.
See Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (holding that the “mailbox rule”
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The exceptions in § 2244(d)(1)(B-D) are inapplicable in this case.
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November 21, 2009, fell on a Saturday. Therefore, Petitioner’s federal habeas petition
would have been due on or before the next business day, which was Monday, November 23,
2009.
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deems a pro se prisoner’s petition filed on the date it is delivered to prison officials for mailing).
As his federal habeas petition was filed well beyond the AEDPA deadline, federal habeas
relief is available to Petitioner 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 cites no
such circumstances, and the Court finds that equitable tolling is not warranted in this case.
Accordingly, the instant petition must 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 the
petitioner. Petitioner must obtain a COA before appealing this Court’s decision denying federal
habeas relief. See 28 U.S.C. § 2253(c)(1). Because Petitioner’s petition for writ of habeas
corpus is rejected on procedural grounds, Petitioner must demonstrate “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” in order to obtain a COA. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Applying this standard, the Court concludes that a COA should be denied in this case.
Conclusion
For the reasons set forth in this opinion and order, the Court GRANTS Respondents’
“Motion to Dismiss Pursuant to § 2244(d)” (doc. no. 5) and DISMISSES with prejudice the
petition filed in this cause. The Court DENIES a COA, 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. §
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2253(c)(2). Any pending motions are DISMISSED AS MOOT. A separate judgment in
accordance with this opinion and order will enter today.
SO ORDERED this the 31st day of January, 2014.
/s/ Sharion Aycock
U.S. DISTRICT JUDGE
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