Harris v. Byrd et al
Filing
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MEMORANDUM OPINION re 8 Judgment. Signed by Michael P. Mills on 11/26/12. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION
ELBERT HARRIS
PETITIONER
vs.
CIVIL CASE NO.: 2:12cv171-MPM-DAS
RAYMOND BYRD, et al.
RESPONDENTS
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on the pro se petition of Elbert Harris, Mississippi
prisoner # 30751, for a writ of habeas corpus under 28 U.S.C. § 2254. Respondents have moved
to dismiss the petition as time-barred pursuant to § 2244. The matter is now ripe for resolution.
For the reasons set forth below, Respondents’ motion is granted, and the instant petition will be
dismissed with prejudice.
Facts and Procedural History
Petitioner was convicted of armed robbery in the Circuit Court of Coahoma County,
Mississippi, and sentenced on February 17, 1993, as an habitual offender to serve a sentence of
life without the possibility of parole. (Resp’ts Mot. to Dismiss, Ex. A). Petitioner appealed his
conviction and sentence, and the Mississippi Court of Appeals affirmed the judgment of the
circuit court on September 3, 1996. (Id., Ex. B). According to Respondents, Petitioner did not
seek further review of his conviction and sentence in State court. (See id. 2-3). Petitioner signed
the instant petition on August 27, 2012, and it was stamped “filed” in this Court on September
10, 2012.
On October 29, 2012, Respondents filed a motion to dismiss the instant action, arguing
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that the petition is untimely under 28 U.S.C. § 2244(d). Petitioner has not responded to the
motion to dismiss.
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”). Edgerton v. Cockrell, 334
F.3d 433, 436 (5th Cir. 2003). The issue of whether Respondents’ 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.
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
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tolled. Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citations omitted).
Analysis
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). In such cases, the conviction
becomes final when “the time for seeking [direct] review” in state court expires. Id.; see also 28
U.S.C. § 2244(d)(1)(A). In this case, Petitioner did not seek discretionary review by filing a
petition for rehearing with the Mississippi Supreme Court. As such, his conviction became final
when the time expired for him to seek such review, which was September 17, 1996, fourteen
days after his conviction was 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 September 17, 1997, to be deemed timely.
Because Petitioner did not file a “properly filed” application for post-conviction relief as
contemplated by 28 U.S.C. § 2244(d)(2) before the expiration of his federal habeas deadline, he
is not entitled to a statutory tolling of the limitations period. See 28 U.S.C. § 2244(d)(2) (tolling
the 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.
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Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citations omitted).
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 cites no “rare and exceptional circumstances” that would warrant
equitable tolling in this instance. Scott v. Johnston, 227 F.3d 260, 263 n.3 (5th Cir. 2000).
Petitioner’s federal habeas petition was “filed” sometime between when it was signed on
August 27, 2012, and when it was stamped “filed” on September 10, 2012. 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). Either date is
well past the one-year statute of limitations imposed by the AEDPA, and 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 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying this standard, the
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Court concludes that a COA should be denied in this case.
Conclusion
The Court GRANTS Respondents’ “Motion to Dismiss Pursuant to § 2244(d)” (doc.
entry no. 7) and DISMISSES with prejudice the petition filed in this cause. The Court
DISMISSES all pending motions. 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 federal right.” 28 U.S.C. §
2253(c)(2).
SO ORDERED this the26th day of November, 2012.
/s/ Michael P. Mills
CHIEF JUDGE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
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