Robinson v. Outlaw et al

Filing 16

MEMORANDUM OPINION re 15 Final Judgment. Signed by District Judge Michael P. Mills on 10/29/14. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
CALVIN LEE ROBINSON

PETITIONER

v.

No. 4:13CV59-MPM-DAS

TIMOTHY OUTLAW, ET AL.

RESPONDENTS

MEMORANDUM OPINION
This matter comes before the court on the pro se petition of Calvin Lee Robinson 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). Robinson has responded to the motion, and 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
Calvin Lee Robinson pled guilty to a charge of statutory rape in the Circuit Court of
LeFlore County, Mississippi. On July 24, 2003, he was sentenced to serve a term of thirty years
in the custody of the Mississippi Department of Corrections, with ten years suspended and five
years of post-release supervision. Robinson is in the custody of the Mississippi Department of
Corrections and is currently housed at the Carroll-Montgomery County Regional Correctional
Facility in Vaiden, Mississippi.
On July 23, 2004, Robinson signed a post-conviction motion, which was filed in LeFlore
County Circuit Court Cause No. 2004-0073-CI. Though Robinson did not sign the motion itself,
he did sign the attached affidavit on July 23, 2004, so the court will use that date to calculate the
federal habeas corpus deadline. The circuit court denied Robinson’s motion on October 25,
2004. Robinson did not appeal that decision. Robinson filed a second post-conviction motion in
LeFlore County Circuit Court Cause No. 2004-0073CI, which he signed on September 17, 2007.

On October 1, 2007, the circuit court dismissed this petition as successive. Robinson appealed
that decision and, on September 29, 2009, the Mississippi Court of Appeals affirmed the
dismissal. Robinson v. State, 19 So.3d 140 (Miss.Ct.App. 2009) (Cause No. 2007-CP-01795COA). The Mississippi Supreme Court denied Robinson’s petition for a writ of certiorari on
February 14, 2013. Robinson v. State, 197 So.3d 998 (Table) (Miss. 2013). He filed the instant
petition for a writ of habeas corpus on March 22, 2013.
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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By statute, there is no direct appeal from a guilty plea. See Miss. Code Ann. § 99-35101. As such, Robinson’s judgment became final on August 25, 2003, thirty days after July 24,
2003, the date he was sentenced on his guilty plea.1 Roberts v. Cockrell, 319 F.3d 690 (5th Cir.
2003). Thus, under 28 U.S.C. § 2244(d)(1) his deadline for filing a federal petition for a writ of
habeas corpus then became August 25, 2004. As Robinson properly filed a state application for
post-conviction collateral relief as contemplated by 28 U.S.C. § 2244(d)(2) on or before August
25, 2004, the limitations period did not run during the pendency of the application. Grillete v.
Warden, 372 F.3d 765, 769 (5th Cir. 2004); Flannagan v. Johnson, 154 F.3d 196, 201 (5th Cir.
1998); Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998). Robinson’s July 23, 2004, motion for
post-conviction collateral relief thus tolled the limitations period for 94 days (July 23, 2004,
through October 25, 2004). As such, the deadline to file his federal habeas corpus petition
became November 29, 2004 (August 25, 2004 + 94 days). The calculation actually results in a
date of November 27, 2004, which fell on a Saturday. As such, to calculate the habeas corpus
deadline, the court has used the date of the next available work day, Monday, November 29,
2004. Robinson filed no further applications for post-conviction collateral relief before the new
deadline; as such, he enjoyed no further statutory tolling of the limitations period, which remains
November 29, 2004.
Robinson’s Argument Regarding Intervening Decisions
Robinson argues that he should be exempted from the application of the federal
limitations period pursuant to 28 U.S.C.A. §2241(d)(1)(C), because of the “intervening
decisions” of Missouri v. Frye, 132 S.Ct. 1399 (2012) and Lafler v. Cooper, 132 S.Ct. 1376
1

Thirty days from July 24, 2003, yields a date of August 23, 2003, which fell on a Saturday. As such,
the court has used the next business day, Monday, August 25, 2003, as the date Robinson’s conviction
became final.
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(2012), both of which were decided on March 21, 2012. In Frye, the Supreme Court held that
defense attorneys have a duty to communicate formal plea offers to their clients. Frye, 132 S.Ct.
at 1408. In Lafler, the defendant rejected a plea offer based on what all parties conceded was
deficient advice that he could not be convicted at trial. Lafler, 132 S.Ct. at 1384. The Lafler
Court held that a criminal defendant can demonstrate constitutionally ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 668 (1984), if he can show that: (1) but for
the deficient advice, he would have accepted the offer; (2) the court would have accepted the
terms of the offer; and (3) the conviction and sentence under the offer would have been less than
that received following trial. Lafler, 132 S.Ct. at 1385.
Frye does not apply at all to the instant case because Robinson has not alleged that his
attorney failed to communicate a plea offer from the State. Instead, Robinson alleges that his
attorney lied to him – stating falsely that, though Robinson appeared to have been accepting an
open plea (with a maximum sentence of life imprisonment), the trial court had secretly
communicated to counsel that Robinson would receive a sentence in the range of six to eight
years. Robinson also alleges that counsel told him to lie under oath by answering “no” when the
trial court asked whether anyone had tried to coerce his plea, offer inducements to plead guilty,
or made promises regarding the sentence. Robinson alleges that he, indeed, lied under oath when
asked these questions, telling the court that, in all ways, his plea was knowingly, intelligently,
and freely given. Robinson argues that he only entered his plea because his attorney told him
that the judge had agreed to that his sentence would be in the range of six to eight years – far less
time than the twenty-year sentence he actually received.
The State argues that Robinson’s situation is distinguishable from that of the petitioner in
Lafler, supra, because in those cases the defendants were prevented from accepting a plea due to
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counsel’s ineffectiveness. The State argues that the Supreme Court distinguished cases in which
“a plea deal is accepted by the defendant but rejected by the judge,” Lafler, 132 S.Ct. at 1387 –
and, thus, Lafler does not apply to the present case. That is not, however, what occurred in the
present case. Robinson argues that he accepted the plea – but that his acceptance was based
upon lies his attorney told him regarding the length of the sentence he would receive. The trial
court did not reject the plea; instead, it accepted the plea – but imposed a sentence longer than
Robinson expected based upon his attorney’s representations. The Supreme Court held in Lafler
that a petitioner can state a claim for ineffective assistance of counsel if, because of counsel’s
error during plea negotiations, the petitioner misses the opportunity to take advantage of a plea
offer – and instead, either goes to trial and receives a sentence harsher than that offered by the
State – or accepts a much less favorable plea offer. Robinson argues not that counsel made an
error during plea negotiations, but that counsel fabricated an agreement with the trial judge, then
told Robinson to lie during the plea colloquy. Thus, Robinson’s argument is similar to the one
made in Lafler, but it is distinguishable.
Neither Frye nor Lafler applies to Robinson’s case; instead, several older cases do. In a
case like Robinson’s, “a defendant may seek [habeas corpus] relief on the basis of alleged
promises, though inconsistent with representations [he] made in open court when entering [his]
guilty plea, by proving (1) the exact terms of the alleged promise, (2) exactly when, where, and
by whom the promise was made, and (3) the precise identity of an eyewitness to the promise.
See Harmason [v. Smith], 888 F.2d [1527,]1529 [5th Cir. 1989](citations omitted).” United
States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). As such, the law regarding claims such
as Robinson’s was established long before Robinson entered his plea, and neither Frye nor
Lafler, supra, constitute an intervening decision that would warrant an exception to the federal
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statute of limitations in this case. As such, he may not use the intervening decisions exception to
the one-year federal habeas corpus limitations period to render the instant petition timely filed,
and the deadline for filing such a petition expired on November 29, 2004.
The Fundamental Miscarriage of Justice Exception
Robinson also alleges that a fundamental miscarriage of justice would result if his
conviction were allowed to stand. A credible claim of actual innocence may allow a prisoner
seeking federal habeas corpus relief to avoid the statute of limitations set forth in 28 U.S.C.
§2244(d). McQuiggin v. Perkins, 133 S.Ct. 1924 (2013). “To invoke the miscarriage of justice
exception to AEDPA's statute of limitations . . . a petitioner ‘must show that it is more likely than
not that no reasonable juror would have convicted him in the light of the new evidence.’” Id. at
1935, citing Schlup v. Delo, 115 S.Ct. 851, 567 (1995). Further, an “unexplained delay in
presenting new evidence bears on the determination whether the petitioner has made the requisite
showing.” Id. As such, the fundamental miscarriage of justice exception applies only to cases of
actual innocence, “where the petitioner shows, as a factual matter, that he did not commit the
crime of conviction.” Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (citing Ward v.
Cain, 53 F.3d 106, 108 (5th Cir. 1995)). To establish his innocence, Robinson offer new,
reliable, evidence that was not presented at trial – proving that, “more likely than not that no
reasonable juror would have convicted him in light of the new evidence.” Fairman, 188 F.3d at
644 (citations omitted).
Robinson pled guilty to statutory rape, and he has presented no evidence that he is
actually innocent of that crime. Instead, he has simply attached affidavits to his memorandum
alleging that he was induced to plead guilty because his attorney told him he would receive a
lighter sentence than the one actually imposed. These allegations have no bearing on Robinson’s
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innocence or guilt – only the reason he chose to plead guilty. As such, Robinson has made no
plausible claim of innocence, and the deadline for seeking federal habeas corpus relief expired
on November 29, 2004.
The Petition’s Untimeliness
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
court. Coleman v. Johnson, 184 F.3d 398, 401, reh’g and reh’g en banc 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 (5th Cir. 1998)). In this case, the federal petition was
filed sometime between the date it was postmarked on March 19, 2013, and the date it was
received and stamped as “filed” in the district court on March 22, 2013. Giving the petitioner the
benefit of the doubt by using the earlier date, the instant petition was filed more than eight years
after the November 29, 2004, filing deadline. As discussed above, Robinson has not alleged any
“rare and exceptional” circumstance to warrant equitable tolling, Ott v. Johnson, 192 F.3d 510,
513-14 (5th Cir. 1999), and the circumstances in this case do not give rise to any other reason to
toll the limitations period. 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 29th day of October, 2014.
/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI

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