Ellis v. Mississippi Department of Corrections et al

Filing 12

MEMORANDUM OPINION re 11 Judgment. Signed by Glen H. Davidson on 11/25/13. (jtm)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

OXFORD DIVISION

SANDRA K. ELLIS

PETITIONER

v.

No. 3: 13CV157-D-A

MISSISSIPPI DEPARTMENT
OF CORRECTIONS, ET AL.

RESPONDENTS

MEMORANDUM OPINION

This matter comes before the court on the pro se petition of Sandra K. Ellis for a writ of

habeas corpus under 28 U.S.c. § 2254. The State has moved to dismiss the petition as untimely filed
under 28 U.S.c. § 2244(d). Ellis has not responded to the motion, and the deadline for response has
expired. The matter is ripe for resolution. For the reasons set forth below, the State's motion to
dismiss will be granted and the petition dismissed as untimely filed under 28 U.S.c. § 2244(d).
Facts and Procedural Posture

The petitioner, Sandra K. Ellis, is in the custody of the Mississippi Department of Corrections
and is currently housed at the Washington County Regional Correctional Facility in Greenville,
Mississippi. Ellis pleaded guilty to one (1) count of Robbery by Use of a Deadly Weapon in the
Circuit Court of Desoto County, Mississippi. On August 26,2010, she was sentenced to serve eight (8)
years in the custody of the Mississippi Department of Corrections, with ten (10) years on post-release
supervision. By statute, there is no direct appeal from a guilty plea. See Miss. Code Ann. § 99-35-101.
Ellis did not file a motion for post-conviction relief within the AEDPA's one year statute of limitations
(as stated in her habeas corpus petition and confirmed by the Mississippi Supreme Court Clerk).
One-Year Limitations Period

Decision in this case is governed by 28 U.S.C. § 2244(d), which provides:

(d)(I) A I-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 ofthe Constitution or the laws ofthe 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 postconviction 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).
Ellis' conviction became final on August 26, 2010, the date of her judgment of conviction. As
such, the deadline for the filing of Ellis' federal habeas corpus petition was August 26, 2011, one year
after her conviction became final. Ellis did not file a motion for post-conviction relief within the
AEDPA's one year statute of limitations (as stated in her habeas corpus petition and confirmed by the
Mississippi Supreme Court Clerk); as such, there is no statutory tolling of the limitations period.

Grillete v. Warden, 372 F.3d 765,769 (5 th Cir. 2004); Flannagan v. Johnson, 154 F.3d 196,201 (5 th
Cir. 1998); Davis v. Johnson, 158 F.3d 806 (5 th Cir. 1998).
Under the "mailbox rule," the instant pro se federal petition for a writ of habeas corpus
is deemed filed on the date the petitioner delivered it to prison officials for mailing to the district
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court. Coleman v. Johnson, 184 F.3d 398, 401, reh 'g and reh 'g en bane denied, 196 F.3d 1259
(5th Cir. 1999), cert. denied, 529 U.S. 1057, 120 S. Ct. 1564, 146 L.Ed.2d 467 (2000) (citing
Spotville v. Cain, 149 F.3d 374, 376-78 (5 th Cir. 1998)). In this case, the federal petition was

filed sometime between the date it was signed on June 11,2013, and it was received and stamped
as "filed" in the district court on June 14,2013. Giving the petitioner the benefit of the doubt by
using the earlier date, the instant petition was filed 655 days after the August 26, 2011, filing
deadline. The petitioner does not allege any "rare and exceptional" circumstance to warrant
equitable tolling. Ott v. Johnson, 192 F.3d at 513-14. The instant petition will thus dismissed
with prejudice and without evidentiary hearing as untimely filed under 28 U.S.C. § 2244(d). A
final judgment consistent with this memorandum opinion will issue today.

SO ORDERED, this, the

d

S"~

day of November, 2013.

/s/ Glen H. Davidson
SENIOR JUDGE

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