Sanders v. Monroe County Mississippi et al
MEMORANDUM OPINION and ORDER - Motion to dismiss 7 GRANTED; petition dismissed with prejudice. Certificate of appealability DENIED. Signed by District Judge Sharion Aycock on 1/4/17. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
MONROE COUNTY MISSISSIPPI and
STATE OF MISSISSIPPI
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on the pro se petition of Mississippi inmate, David
Sanders, for a writ of habeas corpus under 28 U.S.C. § 2254. Respondents have moved to
dismiss the petition as time barred, and despite having been afforded an opportunity to do so,
Petitioner has failed to respond. 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
Sanders pleaded guilty and was convicted of grand larceny in the Circuit Court of Monroe
County on January 23, 2013.1 Doc. #7-1. He was sentenced to ten years in the custody of the
Mississippi Department of Corrections (“MDOC”), with credit for time served and the remainder
of the sentence suspended with five years of post-release supervision. Id. On December 18,
2013, his suspended sentence was revoked for the following reasons: failure to live without
violating the laws of the State of Mississippi; failure to pay court costs, fines, and restitution; and
According to the Mississippi Department of Corrections’ (“MDOC”) website, Sanders
is currently incarcerated pursuant to a variety of convictions but is only challenging his Monroe
County grand larceny plea and conviction in the instant petition. See
https://www.ms.gov/mdoc/inmate (search by “last name” and “first name”) (last visited January
failure to pay supervision fees. Doc. #7-2. As a result of the revocation, Sanders was sentenced
to serve his original ten-year sentence in the custody of MDOC. Id.
On or about October 14, 2016, Sanders filed the instant petition challenging his
revocation and resulting sentence. Doc. #1. Respondents subsequently moved to dismiss the
petition as untimely filed, and Petitioner has failed to respond to the motion. This matter is ripe
Law and Analysis
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
(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
(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
shall not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d)(1) and (2).
The Court finds that the exceptions of § 2244(d)(1)(B-D) are inapplicable in this case.
Therefore, unless the limitations period is tolled, Sanders must have filed his federal habeas
petition within one year of the date his conviction became final. § 2244(d)(1)(A). Because an
order revoking a suspended sentence is not appealable, Sanders’ sentence pursuant to his
revocation became final on December 18, 2013 — the day he was revoked and sentenced. See
Griffin v. State, 382 So. 2d 289, 290 (Miss. 1980). Therefore, absent any applicable tolling,
Sanders’ federal habeas petition was due on December 18, 2014.
Following his revocation, Sanders filed a “Motion for Post-Conviction Collateral Relief”
in Monroe County Circuit Court Cause No. 2016-115, which he dated May 5, 2016. Doc. #7-3.
On September 13, 2016, he filed an amendment to the post-conviction pleading. Doc. #7-4.
Sanders’ post-conviction motion was not resolved before Respondents’ filed the instant motion.
See Doc. #7-5. Accordingly, because Sanders’ initial post-conviction pleading was dated after
the expiration of the federal limitations period, his post-conviction pleading cannot toll the
federal limitations period, and he is not entitled to statutory tolling for the pendency of this
Sanders signed his federal habeas petition on October 10, 2016, and it was received in
this Court on October 14, 2016. Doc. #1. Under the “mailbox rule,” a petitioner’s pro se
petition for a writ of habeas corpus is deemed filed on the date it is delivered to prison officials
for mailing. See Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999). Giving Sanders the
The Court also notes that, inasmuch as Sanders’ post-conviction motion is currently
pending in the trial court, his federal habeas claims are unexhausted. See 28 U.S.C. § 2254(c)
(finding exhaustion not complete if petitioner has right to raise question under state law by any
benefit of the earlier filing date, the Court finds that the instant petition was still filed well
beyond the December 18, 2014, deadline.
Even though Sanders has failed to meet any of the § 2244(d) exceptions to the one-year
limitations period, the Court notes that the limitations period of the AEDPA may be equitably
tolled if Sanders can demonstrate “(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way” to prevent timely filing. Holland v. Florida,
130 S. Ct. 2549, 2562 (2010) (citations omitted). It is relief that is available only in “rare and
exceptional circumstances,” such as where a petitioner “is actively misled . . . about the cause of
action or is prevented in some extraordinary way from asserting his rights.” Ott v. Johnson, 192
F.3d 510, 513 (5th Cir. 1999). The Court finds that Sanders does not show “rare and exceptional
circumstances” that would warrant equitable tolling in this case, and it determines that the instant
petition is 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 entry of a final order adverse to the petitioner.
Sanders must obtain a COA before appealing this Court’s decision denying federal habeas relief.
28 U.S.C. § 2253(c)(1). A COA will not issue unless a petitioner makes “a substantial showing
of the denial of a constitutional right” of any claim rejected on its merits, which he may do by
demonstrating that “reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484
(2000). To obtain a COA on a claim that has been rejected on procedural grounds, a 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.” Slack, 529 U.S. at 484. Applying
this standard, the Court finds that a COA should be denied in this case.
The Court finds that the instant petition is barred by the AEDPA’s one-year statute of
limitations. Therefore, the Court GRANTS Respondents’ “Motion to Dismiss Pursuant to 28
U.S.C. § 2244(d)”  and DISMISSES Petitioner’s petition with prejudice. A certificate of
appealability is DENIED. A final judgment in accordance with this memorandum opinion and
order will issue today.
SO ORDERED this the 4th day of January, 2017.
/s/ Sharion Aycock
U.S. DISTRICT JUDGE
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