McCoy v. Jenkins et al
Filing
13
MEMORANDUM OPINION. Signed by District Judge Sharion Aycock on 1/14/19. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
JAMES MCCOY
PETITIONER
v.
No. 3:18CV66-SA-RP
WARDEN LEPHER JENKINS, ET AL.
RESPONDENTS
MEMORANDUM OPINION
This matter comes before the court on the pro se petition of James McCoy 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)(2). Mr. McCoy has responded to the motion, and the State has replied. The
matter is ripe for resolution. For the reasons set forth below, the State’s motion to dismiss will be
granted and the instant petition for a writ of habeas corpus dismissed as untimely filed.
Facts and Procedural Posture
James McCoy pled guilty to two counts of armed robbery on November 14, 2007, and
was sentenced to concurrent terms of thirty years on each count with five years of each count
suspended and five years post-release supervision. See Exhibit A1 (Order (Incarceration and Post
Release Supervision)), Union County Circuit Court, Cause No. UK 2006-171-A). Mr. McCoy
filed a Motion for Post Conviction Relief in the trial court on February 9, 2009, which the trial
court denied. See Exhibit B (Order Denying Relief Requested, Union County Circuit Court,
Cause No. UK 2006-171-A). Mr. McCoy appealed the denial, and the Mississippi Court of
Appeals reversed the trial court’s denial of McCoy’s Motion for Post-Conviction Relief,
1
The exhibits referenced in the instant memorandum opinion may be found attached to the
State’s motion to dismiss.
remanding the matter for an evidentiary hearing regarding whether he relied on erroneous
information about his eligibility for parole and whether trial counsel was ineffective for
erroneously advising him on the matter. See Exhibit C; McCoy v. State, 47 So. 3d 1197, 1199,
(¶¶ 7-10) (Miss. Ct. App. 2010).
The trial court granted Mr. McCoy’s Motion for Post-Conviction Relief, set aside his guilty
plea, and set trial for November 15, 2011. See Exhibit D (Order Granting Post-Conviction Relief and
Order of Setting, Union County Circuit Court, Cause No. UK 2006-171-A). A jury found him guilty
on two counts of armed robbery. See Exhibit E (Jury Verdict, Union County Circuit Court, Cause No.
UK 2006-171-A). The trial court2 sentenced him to serve two (2) consecutive thirty-five (35) year
sentences, with thirty (30) years to serve on each and five (5) years suspended on each – a total of 60
years’ incarceration without the possibility of parole. See Exhibit F (Sentencing Order, Union County
Circuit Court, Cause No. UK 2006-171-A). The trial court also ordered that McCoy be placed on five
(5) years post-release supervision upon his release and must pay all court costs, as well as restitution to
the victims in the amount of $4,600.00. Id. Mr. McCoy appealed, and the Mississippi Supreme Court
affirmed his convictions and sentences on September 18, 2014. See Exhibit G; McCoy V. State, 147
So. 3d 333 (Miss. 2014). He did not seek rehearing. Id. According to the docket of the United States
Supreme Court, available on that Court’s website, Mr. McCoy did not seek a writ of certiorari in the
Supreme Court.
2
A different judicial officer imposed the post-trial sentence than the one who imposed the
sentence after the guilty plea.
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On October 11, 2017, he filed an Application for Leave to Proceed in the Trial Court and
Motion for Post-Conviction Relief that was stamped “Filed” in the Mississippi Supreme Court on
October 16, 2017. See Exhibit H. The Mississippi Supreme Court denied the Application and Motion
for Post-Conviction Relief on January 10, 2018, holding the grounds to be untimely, barred by res
judicata, waived, or lacking arguable merit. See Exhibit I.
One-Year Limitations Period
Decision in this case is governed by 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 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.
(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).
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Mr. McCoy’s conviction and sentence became final on Wednesday, December 17, 2014,
ninety (90) days after his conviction was affirmed by the Mississippi Supreme Court (September 18,
2014 + 90 days). Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003) (state conviction becomes
final at the end of direct review or when the deadline for such review expires.) Thus, his initial
deadline for seeking federal habeas corpus relief became December 17, 2015 (December 17, 2014 + 1
year).
Mr. McCoy did not file a proper application for post-conviction relief as contemplated by 28
U.S.C. § 2244(d)(2) on or before that deadline; as such, he does not enjoy statutory tolling of the
federal habeas corpus limitations period.3 See Flanagan, supra; Davis v. Johnson, 158 F.3d 806 (5th
Cir. 1998). Thus, Mr. McCoy’s federal habeas corpus petition remained due in this court by
Thursday, December 17, 2015.
Equitable Tolling
Mr. McCoy argues in his response to the State’s motion to dismiss that he is entitled to
equitable tolling because the federal one-year habeas corpus limitations period does not begin to
run until the three-year state deadline expires. Doc. 8 at 3-4. However, as the State argues in its
reply, the law does not operate in that fashion. Instead, the one-year federal limitations period
3
Because the Mississippi Supreme Court denied Mr. McCoy’s Motion for Post-Conviction
Relief as untimely, it is not a properly filed application under 28 U.S.C. § 2244(d)(2). See Pace v.
DiGuglielmo, 544 U.S. 408 (2005) (holding that “[w]hen a postconviction petition is untimely under
state law, ‘that [is] the end of the matter’ for purposes of 2244(d)(2).” (internal citation omitted)).
In addition, his application for state post-conviction collateral relief was submitted after
December 17, 2015 (the date that the federal habeas corpus limitations period expired); as such, he is
not entitled to statutory tolling under § 2244(d)(2) while his state application was pending.
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begins to run the moment a defendant’s conviction becomes final – and keeps running until the
petitioner properly files a direct appeal of that conviction or a post-conviction challenge.
Roberts v. Cockrell, 319 F.3d 690 (5th Cir. 2003). Thus, until the petitioner files a state
application for post-conviction relief, the state and federal clocks run simultaneously. In other
words, the one-year federal habeas corpus limitations period can expire before the state threeyear post-conviction relief period does.
As discussed above, Mr. McCoy’s deadline for seeking federal habeas corpus relief
expired on December 17, 2015, and he did not sign his state application for post-conviction
collateral relief until February 28, 2018, over two years later. Hence, in the absence of equitable
tolling, Mr. McCoy’s federal petition was untimely filed.
“The doctrine of equitable tolling preserves a [petitioner’s] claims when strict application
of the statute of limitations would be inequitable.” United States v. Patterson, 211 F.3d 927, 930
(5th Cir.2000) (per curiam) (internal quotations omitted). The one-year limitations period of the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) in 28 U.S.C. § 2255(f) is not
jurisdictional; thus, it is subject to equitable tolling. United States v. Wynn, 292 F.3d 226, 230
(5th Cir.2002). For this reason, a district court may toll the AEDPA limitations period. Id. at
229–30.
The decision whether to apply equitable tolling turns on the facts and circumstances of
each case. Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.2000); see also Alexander v. Cockrell,
294 F.3d 626, 628 (5th Cir.2002) (per curiam). However, a court may apply equitable tolling
only “in rare and exceptional circumstances.” Davis v. Johnson, 158 F.3d 806, 811 (5th
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Cir.1998); see also Minter v. Beck, 230 F.3d 663, 666–67 (4th Cir.2000) (“[E]quitable tolling of
the AEDPA’s one year limitation period is reserved for those rare instances where – due to
circumstances external to the party’s own conduct – it would be unconscionable to enforce the
limitation period against the party and gross injustice would result.”) (quotation omitted).
The petitioner bears the burden of establishing that equitable tolling is warranted. See
Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.), modified on reh'g, 223 F.3d 797 (2000) (per
curiam). In order to satisfy his burden, the petitioner must show “(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way” of timely
filing his § 2255 motion. Lawrence v. Florida, 549 U.S. 327, 127 S.Ct. 1079, 1085, 166 L.Ed.2d
924 (2007). A petitioner’s delay of even four months shows that he has not diligently pursued
his rights. Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001)
Mr. McCoy has not shown that he is entitled to equitable tolling of the federal limitations
period in this case. He has not identified any extraordinary circumstances which might trigger
equitable tolling, and he has not explained the two-year delay in filing his federal petition for a writ of
habeas corpus, nor why he failed to file his state post-conviction application in a timely fashion. As
such, he is not entitled to equitable tolling, and his federal habeas corpus deadline remains December
17, 2015.
The Instant Petition Is Untimely
Under the prison “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 court. Coleman v. Johnson, 184 F.3d 398, 401, reh’g and reh’g en banc denied, 196 F.3d
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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 (5th Cir. 1998)). In this case, the federal petition
was filed sometime between the date it was signed on February 28, 2018, and the date it was
received and stamped as “filed” in the district court on March 20, 2018. Giving the petitioner the
benefit of the doubt by using the earlier date, the instant petition was filed over two years after
the December 17, 2015, filing deadline. For these reasons, the State’s motion to dismiss will be
granted, and the instant petition for a writ of habeas corpus will 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 14th day of January, 2019.
/s/ Sharion Aycock
U. S. DISTRICT JUDGE
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