Birkhead v. King et al
MEMORANDUM OPINION GRANTING motion to dismiss. Signed by District Judge Debra M. Brown on 2/4/15. (tab)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
RONALD W. KING, ET AL.
This matter comes before the Court on the pro se petition of Richard Birkhead 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). Although Birkhead requested additional time to respond to the motion,
he has not done so, and the deadline for response has expired. The matter is ripe for resolution. For
the reasons below, the Court grants the State’s motion and dismisses the instant petition for a writ of
habeas corpus as untimely filed.
On March 8, 2007, Birkhead was convicted of capital murder in the Circuit of
Washington County, Mississippi, and was sentenced to a term of life without parole as a habitual
offender. On February 19, 2009, the Mississippi Supreme Court affirmed Birkhead’s conviction
and sentence. However, the Mississippi Supreme Court granted an en banc rehearing and, on
February 17, 2011, again affirmed Birkhead’s conviction and sentence. Birkhead v. State, 57
So.3d 1223 (Miss. 2011) (Cause No. 2007-KA-00666-SCT). According to both the state court
record and the docket of the United States Supreme Court, as available on its website, Birkhead
did not seek a writ of certiorari to the United States Supreme Court.
On February 15, 2012, Birkhead signed a “Writ of Habeas Corpus Ad-Subjeciendum
[sic],” which was filed in Greene County Circuit Court as Cause No. 2012-023(3). That petition
was transferred to the Washington County Circuit Court. On May 7, 2012, the Washington
County Circuit Court, deeming Birkhead’s pleading as a request for post-conviction collateral
relief under Miss. Code Ann. § 99-39-1, et seq., dismissed the action without prejudice as
improper due to Birkhead’s failure to first seek permission of the Mississippi Supreme Court
under Miss. Code Ann. § 99-39-7. Birkhead appealed this decision to the Mississippi Supreme
Court in Cause No. 2012-CP-00568-COA. On September 11, 2012, a “Show Cause Notice” was
issued in that case instructing Birkhead to file his brief within fourteen days. On October 4,
2012, the appeal was dismissed for Birkhead’s failure to do so. On October 25, 2012, the
Mississippi Supreme Court’s mandate issued in that cause. On February 21, 2013, Birkhead
signed an application to the Mississippi Supreme Court seeking permission to proceed in the trial
court with a petition for post-conviction collateral relief, which was docketed in Cause No. 2013M-00330. On April 25, 2013, the Mississippi Supreme Court denied Birkhead’s application.
The State has moved to dismiss Birkhead’s federal habeas petition as untimely filed under 28
U.S.C. § 2244(d). That section 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
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).
The State argues that unless the narrow exceptions of § 2244(d)(1)(B-D) apply, the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires that a petitioner’s federal
habeas corpus petition be filed within one year of the date that the petitioner’s judgment of
conviction becomes final. The State contends that although a properly filed, pending state court
motion for post-conviction relief may toll the one-year limitation period, here Birkhead failed to
properly file such a motion. The State argues that, as such, and because no other exceptions
under § 2244(d)(1) apply, Birkhead’s petition for a writ of habeas corpus was due in this court on
or before May 18, 2012—a deadline he failed to meet.
Section 2244(d)(1) provides that the one-year limitation period shall run from the latest
of several start dates, including “the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review.” Direct review includes a
petition for writ of certiorari to the United States Supreme Court. Roberts v. Cockrell, 319 F.3d
690, 694-95 (5th Cir. 2003). Although Birkhead did not seek a writ of certiorari to the United
States Supreme Court, ninety days—the time period during which he could have sought such
review—is added to the date on which Birkhead’s direct appeal ended and his conviction became
final. See id. at 695 (“[F]inality was established by the expiration of the ninety-day period to
seek further review with the Supreme Court, rather than the date the conviction became final for
purposes of state law.”); see also Sup. Ct. R. 13(1). Thus, Birkhead’s conviction became final on
May 18, 2011, ninety days after the Mississippi Supreme Court affirmed his conviction and
Under the AEDPA’s one-year statute of limitations, Birkhead’s federal habeas petition
was due in this Court on or before May 18, 2012. In order to toll the limitations period, a habeas
corpus petitioner must “properly file” a state application for post-conviction collateral relief on
or before the one-year period expires. 28 U.S.C. § 2244(d)(2). “[A]n application [for federal
habeas corpus relief] is ‘properly filed’ when its delivery and acceptance are in compliance with the
applicable laws and rules governing filings. These usually prescribe, for example, the form of the
document, the time limits upon its delivery, the court and office in which it must be lodged, and the
requisite filing fee.” Artuz v. Bennett, 531 U.S. 4, 8 (2000) (emphasis added).
Birkhead initiated a proceeding in Greene County Circuit Court prior to the expiration of
the federal one-year limitations period. However, his failure to first seek the permission of the
Mississippi Supreme Court pursuant to Miss. Code Ann. § 99-39-7 rendered the circuit court an
improper venue. As such, the petition was improperly filed under Artuz, supra. Therefore,
Birkhead is not entitled to statutory tolling for the pendency of this action, and May 18, 2012,
remains the federal habeas corpus filing deadline.
Under the “prison mailbox rule,” a federal petition for a writ of habeas corpus is deemed
filed on the date the petitioner delivers it to prison officials for mailing to the district court. See
Richard v. Thaler, 710 F.3d 573, 576 (5th Cir. 2013) (quoting Houston v. Lack, 487 U.S. 266,
270 (1988)); see also Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (extending Houston to
§ 2254 applications). In the instant case, Birkhead signed his federal habeas petition on March
19, 2014, and the petition was stamped as “filed” in the district court on March 24, 2014.
Though the record does not indicate the specific date—between March 19, 2014, and March 24,
2014—on which Birkhead delivered the petition to prison officials for mailing, at a minimum,
Birkhead filed his federal habeas petition 670 days beyond the expiration of the May 18, 2012
statute of limitations.1
For the reasons above, the instant petition is 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 4th day of February, 2015.
/s/ Debra M. Brown_______
UNITED STATES DISTRICT JUDGE
Further, although Birkhead has not invoked the doctrine of equitable tolling, the Court notes that he has not alleged any
rare and exceptional circumstances to merit application of the doctrine. See Ott v. Johnson, 192 F.3d 510, 513-14 (5th Cir.
1999) (requiring “rare and exceptional circumstances” to warrant equitable tolling of AEDPA’s limitations period).
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