Dunlap v. State of Mississippi et al

Filing 11

MEMORANDUM OPINION re 10 Final Judgment. Signed by Debra M. Brown on 3/20/14. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
STEPHEN DUNLAP

PETITIONER

V.

No. 4:13-CV-00086-DMB-DAS

STATE OF MISSISSIPPI, ET AL.

RESPONDENTS

MEMORANDUM OPINION
This matter comes before the court on the pro se petition of Stephen Dunlap 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). 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
Stephen Dunlap pleaded guilty to sexual battery in the Circuit Court of Rankin County,
Mississippi, and was sentenced by Order filed on June 6, 2011, to serve a term of twenty (20) years,
with five (5) years suspended and fifteen (15) years to serve in the custody of the Mississippi
Department of Corrections. By statute, there is no direct appeal from a guilty plea. See Miss. Code
Ann. § 99-35-101. Therefore, Dunlap’s conviction became final on June 6, 2011 when he was
sentenced on his guilty plea. See Roberts v. Cockrell, 319 F.3d 690 (5th Cir. 2003). Further, unless
Dunlap filed a “properly filed” application as contemplated by 28 U.S.C. § 2244(d)(2) on or before
June 6, 2012, to toll the period of limitation, any habeas petition challenging the conviction and
sentence imposed for sexual battery would be filed too late. See Roberts v. Cockrell, supra;
Flannagan v. Johnson, 154 F.3d 196, n.1 (5th Cir. 1998); Davis v. Johnson, 158 F.3d 806 (5th Cir.
1998). Dunlap admits, and the Attala County Circuit Court Clerk’s Office confirmed, that Dunlap

has not filed any motions for post-conviction relief in that court challenging his plea and sentence to
sexual battery. Therefore, Dunlap is not entitled to statutory tolling, and his federal habeas petition is
untimely filed.
One-Year Limitations Period
The 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).
Thus, unless the narrow exceptions of § 2244(d)(1)(B-D) apply, a petitioner’s federal
habeas corpus petition must be filed within one year of the date that the petitioner’s judgment of
conviction becomes final, subject to tolling for the period when a properly filed motion for post2

conviction relief is pending in state court. See, e.g., Roberts v. Cockrell, supra; Cantu-Tzin v.
Johnson, 162 F.3d 295 (5th Cir. 1998), cert. denied, 119 S.Ct. 847 (1999); Sonnier v. Johnson,
161 F.3d 941, 944 (5th Cir. 1998); Flanagan v. Johnson, supra. Dunlap failed to file his habeas
petition within the allotted time period.
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 the instant case, Dunlap did not sign
his petition. However, the petition was postmarked on May 8, 2013. The petition was stamped
as “filed” in the district court on May 10, 2013. Giving the petitioner the benefit of the doubt by
using the earlier date, the instant petition was filed 336 days after the June 6, 2012, filing
deadline. The petitioner does not allege any “rare and exceptional” circumstance to warrant
equitable tolling. Ott v. Johnson, 192 F.3d 510, 513-14 (5th Cir. 1999). The instant petition will
thus be 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 20th day of March, 2014.

/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE

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