Archer v. Fisher et al

Filing 20

MEMORANDUM OPINION. Signed by District Judge Sharion Aycock on 1/8/16. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
RICKY ARCHER

PETITIONER

V.

CIVIL ACTION NO.: 4:15CV101-SA-SAA

MARSHALL L. FISHER and
JIM HOOD

RESPONDENTS

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on the pro se petition of Ricky Archer, Mississippi
prisoner # 33162, for a writ of habeas corpus under 28 U.S.C. § 2254. Respondents have moved
to dismiss the petition as time-barred pursuant to 28 U.S.C. § 2244, and Petitioner has
responded. For the reasons set forth below, Respondents’ motion is granted, and the instant
petition is dismissed with prejudice.
Facts and Procedural History
Ricky Archer was convicted of fondling and the statutory rape of his daughter in the
Circuit Court of Leflore County, Mississippi. By sentencing order filed April 9, 2010, he was
sentenced to serve a sixteen-year term of incarceration followed by four years of post-release
supervised probation on the statutory rape count, and a concurrent term of two years on the
fondling count. See Mot. to Dismiss, Ex. A. With the assistance of counsel, Archer appealed the
judgments of conviction and sentences to the Mississippi Supreme Court, which affirmed the
circuit court’s judgment. See id., Ex. B; see also Archer v. State, 118 So. 3d 612 (Miss. App.
2013), reh’g denied, April 9, 2013, cert. denied, July 18, 2013 (Cause No. 2010-KA-01127COA). Archer did not seek certiorari review with the United States Supreme Court.
Thereafter, on December 15, 2014, Archer signed an application to proceed on a motion

for post-conviction relief that was stamped “filed” with the Mississippi Supreme Court on
December 18, 2014. See id., Ex. C. The Mississippi Supreme Court denied the application by
order filed February 4, 2015. Id., Ex. D (Cause No. 2014-M-1767). Archer then filed a “Motion
for Post-Conviction Collateral Relief En Banc” with “Application for Leave to Proceed in the
Trial Court,” which was stamped filed on April 26, 2015. Id., Ex. E. By order filed June 2,
2015, the Mississippi Supreme Court denied the motion as a successive writ and otherwise as
without merit. Id., Ex. F (Cause No. 2014-M-01767). Archer subsequently filed a “Writ of
Certiorari Review,” which the court treated as a motion for reconsideration and denied pursuant
to Mississippi Rule of Appellate Procedure 27(h).1 Id., Ex. G.
Archer signed his petition for federal habeas relief on August 6, 2015, and the petition
was stamped “filed” in this Court on August 10, 2015. See ECF No. 2.
Legal Standard
The instant petition for writ of habeas corpus is subject to the statute of limitations of the
Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Egerton v. Cockrell, 334
F.3d 433, 436 (5th Cir. 2003). The issue of whether Respondents’ motion should be granted
turns on the statute’s limitation period, 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;

1

This rule holds that “rulings on petitions for post-conviction relief are not subject to
reconsideration.” M.R.A.P. 27(h).
2

(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.

28 U.S. C. § 2244(d)(1). The federal limitations period is tolled while a “properly filed
application for State post-conviction or other collateral review” is pending. See 28 U.S.C. §
2244(d)(2). In “rare and exceptional circumstances,” the limitations period may be equitably
tolled. Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citations omitted).
Discussion
A state court judgment generally becomes final “upon denial of certiorari by the Supreme
Court or expiration of the period” of time to seek it. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.
1999). Because Archer did not seek certiorari review, his judgment became “final” for purposes
of the AEDPA on October 16, 2013— ninety days after his convictions and sentences reached a
final decision in State court (July 18, 2013 plus 90 days).2 See 28 U.S.C. § 2101; Gonzalez v.
Thaler, 132 S. Ct. 641, 653-54 (2012) (holding that when a petitioner does not pursue direct
review all the way to the Supreme Court, “the judgment becomes final at the ‘expiration of the
time for seeking such review’— when the time for pursuing direct review in this Court, or in

2

The exceptions of § 2244(d)(1)(B-D) are inapplicable in this case.
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state court, expires”). Therefore, unless Archer filed a “properly filed” State post-conviction
application as contemplated by 28 U.S.C. § 2244(d)(2) on or before October 16, 2014, to toll the
limitations period, his habeas petition was filed too late.
Archer did not initially file for post-conviction relief in State court until December 15,
2014. Because his State court petitions for post-conviction relief were filed after the expiration
of the federal limitations, he is not entitled to statutory tolling during the pendency of these
actions. See 28 U.S.C. § 2244(d)(2).
Archer’s federal habeas petition was “filed” sometime between when it was signed on
August 6, 2015, and when it was stamped as filed in this Court on August 10, 2015. See
Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (holding that the “mailbox rule” deems a
pro se prisoner’s petition filed on the date it is delivered to prison officials for mailing). Either
date is well past the expiration of the federal deadline.
Archer claims that the Court must review the merits of his claims, as he is actually
innocent of the crime of conviction. The Supreme Court has held that “actual innocence, if
proved, serves as a gateway through which a petitioner may pass whether the impediment is a
procedural bar. . . or, as in this case, expiration of the statute of limitations.” McQuiggin v.
Perkins, 133 S. Ct. 1924, 1928 (2013). The requirement of “proof” is not met, however, unless
the petition “persuades the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id. (citation
omitted). Archer’s daughter, the victim in this case, testified that Archer had sex with her, and
that testimony was corroborated by her two sisters, who were eyewitnesses to the crimes. See
Archer v. State, 118 So. 3d at 617. Therefore, the Court determines that Archer’s allegations of

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innocence are conclusory, and he has failed to demonstrate that he is actually innocent of the
crime of conviction.
Accordingly, federal habeas relief is available to Archer only if he can demonstrate that
his case involves “rare and exceptional circumstances” that would warrant an equitable tolling of
the limitations period. Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citations
omitted). Archer’s imprisonment and/or unfamiliarity with the law is insufficient reason to
warrant equitable tolling. See Felder, 204 F.3d at 172 and n.10; Turner v. Johnson, 177 F.3d
390, 392 (5th Cir. 1999) (equitable tolling is not required simply because a petitioner is
unfamiliar with the law, is unrepresented, or is illiterate). Rather, equitable tolling is available
“if the [petitioner was] actively misled by the defendant about the cause of action or [was]
prevented in some extraordinary way from asserting his rights.” Lookingbill v. Cockrell, 293
F.3d 256, 264 (5th Cir. 2002) (citations omitted). There is no reasonable basis before the Court
to conclude that either circumstance is applicable to Archer’s delay. Therefore, the Court
determines that Archer is not entitled to equitable tolling of the limitations period. Respondents’
motion will be granted, and the petition will be dismissed as untimely.
Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, this Court must issue or
deny a certificate of appealability (“COA”) upon the entry of a final order adverse to the
petitioner. Archer must obtain a COA before appealing this Court’s decision denying federal
habeas relief. See 28 U.S.C. § 2253(c)(1). Because the instant petition is rejected on procedural
grounds, Archer 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

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find it debatable whether the district court was correct in its procedural ruling” in order for a
COA to issue. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying this standard, the Court
concludes that a COA should be denied in this case.
Conclusion
For the reasons set forth herein, the Court GRANTS Respondents’ “Motion to Dismiss
Pursuant to § 2244(d)” [17] and DISMISSES with prejudice the petition filed in this cause. The
Court further DENIES Archer a certificate of appealability, and DISMISSES any pending
motions as moot.
SO ORDERED this the 8th day of January, 2016.
/s/ Sharion Aycock
U.S. DISTRICT JUDGE

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