Young v. Kirklin et al
ORDER OF DISMISSAL granting 11 Motion to Dismiss. Certificate of Appealability denied. Signed by District Judge Debra M. Brown on 9/25/17. (tab)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
PHILLIP EARL YOUNG
ROBERT KIRKLIN; et al.
ORDER OF DISMISSAL
This habeas petition is before the Court for consideration of the motion to dismiss filed
by the respondents. Doc. #11.
A. Underlying State Proceedings
Sometime in 2002, Phillip Young, following a jury trial, was convicted in the Circuit
Court of Sunflower County, Mississippi, on one count of carjacking. Doc. #11-1. On November
15, 2002, the presiding circuit court judge sentenced Young “to a term of fifteen (15) years in the
custody of the Mississippi Department of Corrections, five (5) years suspended, with (5) years
Post Release Supervision.” Id.
On July 31, 2007, following an appeal, the Mississippi Court of Appeals affirmed
Young’s conviction. See Young v. State, 962 So.2d 110, 112 (Miss. Ct. App. 2007). Young did
not seek a rehearing and, accordingly, the Mississippi Court of Appeals issued a mandate on its
decision on August 21, 2007. Doc. #11-3.
On or about March 24, 2014, Young filed a petition for post-conviction relief in the
Mississippi Supreme Court. Doc. #11-4. On May 14, 2014, the Mississippi Supreme Court
dismissed Young’s petition.
Over the next two years, Young filed in the
Mississippi Supreme Court numerous petitions challenging his conviction. See Doc. #11-6; Doc.
#11-8; Doc. #11-10; Doc. #11-12; Doc. #11-14. All such petitions were denied. See Doc. #11-7;
Doc. #11-9; Doc. #11-11; Doc. #11-13; Doc. #11-15.
B. This Action
On or about April 30, 2015, Young filed the instant habeas petition. Doc. #1. Because
Young’s petition referenced a different conviction which had been the subject of a previous
habeas petition, this Court initially transferred the action to the Fifth Circuit for authorization for
a successive petition. Doc. #4. However, on July 21, 2016, the Fifth Circuit issued an order
finding authorization unnecessary because the instant petition only challenged Young’s 2002
conviction. Doc. #5.
Following the Fifth Circuit’s order, Young, on September 12, 2016, filed a motion for
“Leave to File a Federal Collater [sic] Challenge,” which was in substance a motion to amend his
habeas petition. Doc. #6. Approximately two months later, on November 28, 2016, United
States Magistrate Judge Roy Percy granted Young’s motion to amend, Doc. #8, and directed the
respondents to respond to the petition, Doc. #7.
On February 9, 2017, the respondents filed a motion to dismiss Young’s petition as time
barred. Doc. #11. Young has not responded to the motion.
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 post-conviction 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) & (2).
Where a petition is filed outside the one-year limitations period, the “application must be
dismissed as untimely … unless the one-year … period was interrupted as set forth in 28 U.S.C.
§ 2244(d)(2),” Zapata v. Cain, 614 F.Supp.2d 714, 717 (E.D. La. 2007); or “rare and exceptional
circumstances” justify equitable tolling of the limitations period, Felder v. Johnson, 204 F.3d
168, 170–71 (5th Cir. 2000).
Where, as here, a petitioner has failed to exhaust the available appeal process, “the
conviction becomes final when the time for seeking further direct review in the state court
expires.” Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). Following affirmance of a
conviction by the Mississippi Court of Appeals, a defendant has fourteen days to seek rehearing.
Miss. R. App. P. 40(a). A defendant may not seek a writ of certiorari without seeking rehearing
first. Miss. R. App. P. 17(b). Thus, when a defendant fails to seek rehearing, his conviction is
deemed final fourteen days after the Mississippi Court of Appeals’ affirmance of the conviction.
See, e.g., Tanner v. King, No. 1:13-cv-232, 2014 WL 1094872, at *3 n.3 (S.D. Miss. Mar. 19,
2014) (“Tanner never filed a motion for rehearing, and therefore could not have sought a writ of
certiorari. His conviction became final, therefore, at the conclusion of the fourteen-day period for
seeking rehearing in the Mississippi Court of Appeals.”).
Here, Young did not seek rehearing following the affirmance of his conviction. His
conviction, therefore, became final on August 14, 2007 – fourteen days after the Mississippi
Court of Appeals’ decision. Accordingly, Young was required to file his habeas petition on or
before August 14, 2008. He did not file his petition until April of 2015, nearly seven years later.
Young has not advanced grounds for statutory or equitable tolling and this Court has found none
in the record.1 Accordingly, this habeas petition is time barred and the respondents’ motion to
dismiss must be granted.
Certificate of Appealability
This Court must “issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Rule 11 of the Rules Governing Section 2254 Proceedings for the
United States District Courts. A certificate of appealability (“COA”) will issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). For cases rejected on their merits, a movant “must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or wrong”
to warrant a COA. Slack v. McDaniel, 529 U.S. 473, 484 (2000). To obtain a COA on a claim
that has been rejected on procedural grounds, a movant must demonstrate “that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484. Based on the Slack criteria, the Court finds that a
While Young filed a petition for post-conviction for relief, he did so well after the statute of limitations for this
action passed. “A motion for post-conviction relief does not toll the one-year limitations period applicable to filing
for habeas relief if the petition is filed after the limitations period has expired.” Brooks v. Winchester, No. 5:13-cv190, 2014 WL 3548846, at *2 (S.D. Miss. July 17, 2014) (citing Egerton v. Cockrell, 334 F.3d 433, 435 (5th Cir.
2003)); Bruce v. Hall, No. 2:11-cv-100, 2012 WL 243680, at *3 (S.D. Miss. Jan. 5, 2012) (citing Scott v. Johnson,
227 F.3d 260, 263 (5th Cir. 2000)).
COA should not issue in this case.
For the reasons above, the respondents’ motion to dismiss  is GRANTED and this
petition is DISMISSED. A certificate of appealability is DENIED. A final judgment consistent
with this opinion will issue separately.
SO ORDERED, this 25th day of September, 2017.
/s/Debra M. Brown
UNITED STATES DISTRICT JUDGE
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