Wood v. Lowndes County et al

Filing 9

MEMORANDUM OPINION re 8 Judgment. Signed by Senior Judge Glen H. Davidson on 1/2/14. (rel)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

ABERDEEN DIVISION

PETITIONER

RITA WOOD

CIVIL ACTION NO.: 1:13cv178-GHD-DAS

v.

LOWNDES COUNTY and ATTORNEY GENERAL
OF THE ST ATE OF MISSISSIPPI

RESPONDENTS

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on the pro se petition of Rita Wood, a Mississippi
inmate housed at the Washington County Regional Correctional Facility, 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 failed to respond. For the reasons set forth below,
Respondents' motion will be granted, and the instant petition will be dismissed with prejudice.
Facts and Procedural History

On May 13, 2010, Petitioner pleaded guilty to one count of possession of precursor
chemicals with intent to manufacture methamphetamine (Count I) and one count of sale of
methamphetamine (Count II) in the Circuit Court of Lowndes County, Mississippi. She was
sentenced to serve twelve years for each count in the custody of the Mississippi Department of
Corrections. (See Respt's Mot, Ex. A). Petitioner did not tile a motion for post-conviction
relief. The instant motion for federal habeas relief was received by the Court on September 23,
2013. (See doc. no. 1).

On November 27,2013, Respondents filed a motion to dismiss the instant action, arguing
that the petition is untimely under 28 U.S.c. § 2244(d) and otherwise procedurally defaulted.
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To date, Petitioner has not responded 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 (5 th Cir. 2003). The issue of whether Respondents' motion should be granted turns
on the statue's limitation period, which provides:
(d)(l) A I-year period oflimitation 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.

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 (5 th Cir. 2000) (citations omitted).

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Analysis
Under Mississippi 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). Therefore, Petitioner's conviction became final on May 13,2010, when she was
sentenced.! See Roberts v. Cockrell, 319 F.3d 690 (5 th Cir. 2003) (holding that a judgment
becomes final "by the conclusion of direct review or the expiration of the time for seeking such
review"). Absent statutory or equitable tolling, Petitioner's petition for federal habeas relief was
due on or before May 13,2011, to be deemed timely.
Petitioner's federal habeas petition was "filed" sometime between the date it was signed
on September 18,2013, and the date it was stamped "filed" by this Court on September 23,2013.

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).
Because Petitioner did not file for post-conviction relief in State court, the statutory provision
toling Petitioner's application during the pendency of State court proceedings is inapplicable.
As her federal habeas petition was filed well beyond the AEDP A deadline, federal habeas relief
is available to Petitioner only if she can demonstrate that her case involves "rare and exceptional
circumstances" that would warrant an equitable tolling of the limitations period. Felder, 204
F.3d at 170-71.
The Court notes that 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 h[er] rights." Lookingbill v. Cockrell, 293 F.3d 256,264 (5 th Cir. 2002) (citations

! The exceptions in § 2244(d)(1)(B-D) are inapplicable in this case.
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omitted). In this case, there is no reason to conclude that either circumstance is applicable to
Petitioner's delay. Therefore, the Court finds equitable tolling is not warranted, and the instant
petition must be dismissed as untimely.
However, the Court finds that Petitioner would not be entitled to federal habeas relief
even if she had timely filed her petition, as she has failed to exhaust her State court remedies.
See 28 U.S.C. § 2254(b); 0 'Sullivan v. Boerckel, 526 U.S. 838 (1999) (finding petitioner must
present claims to the state's highest court in a procedurally proper manner in order to satisfy the
exhaustion requirement). Petitioner cannot now exhaust her claims in State court, as she failed to
timely seek post-conviction collateral review. See Miss. Code Ann. § 99-39-5 and § 99-39-7
(allowing petitioner to file for post-conviction relief in the trial court within three years of the
entry of judgment of conviction and appeal adverse decision to the Mississippi Supreme Court).
Because there is no avenue available to Petitioner to pursue her claims in State court, her claims
are "technically exhausted" and procedurally defaulted. See Jones v. Jones, 163 F.3d 285,296
(5 th Cir. 1998); see also Sones v. Hargett, 61 F.3d 410, 416 (5 th Cir. 1995). Accordingly, the
Court cannot reach the merits of Petitioner's claims unless she demonstrates either cause and
prejudice for the default, or that a fundamental miscarriage of justice would result from the
Court's failure to review the claims. See Coleman v. Thompson, 501 U.S. 722 (1991). Petitioner
does not argue the applicability of either exception, and the Court finds that neither exception is
warranted. Petitioner's claims are procedurally defaulted.
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
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petitioner. Petitioner must obtain a COA before appealing this Court's decision denying federal
habeas relief. See 28 U.S.C. § 2253(c)(l). Because Petitioner's federal habeas petition is
rejected on procedural grounds, Petitioner may not obtain a COA unless she demonstrates "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." 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
The Court GRANTS Respondents' "Motion to Dismiss Pursuant to § 2244(d)" (doc. no.
7) 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 has failed to make "a substantial showing of the denial of a constitutional

right." 28 U.S.c. § 2253(c)(2). All pending motion are DISMISSED AS MOOT. A separate
judgment in accordance with this opinln and order will enter today.
,J,..,.­

SO ORDERED this the? day of January, 2014.

SENIOR U.S. DISTRICT JUDGE

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