Taylor v. State of Mississippi et al

Filing 22

ORDER granting 14 Motion to Dismiss; and adopting Report and Recommendations re 17 Report and Recommendations as the opinion of this Court. Petitioner's Petition for Habeas Corpus is dismissed. Signed by District Judge Louis Guirola, Jr. on 9/25/09 (RLW)

IN THE UNITED STATES DISTRICT COURT F O R THE SOUTHERN DISTRICT OF MISSISSIPPI S O U T H E R N DIVISION

C O R N E L I U S TAYLOR

§ § V. § § S T A T E OF MISSISSIPPI, JIM HOOD, and § J A C K I E PARKER §

PE T IT IO N E R N O . 1:08cv1363-LG-RHW

RESPONDENTS

O R D E R ADOPTING PROPOSED FINDINGS OF FACT AND RECOMMENDATION B E F O R E THE COURT is the Proposed Findings of Fact and Recommendation [17] of U n i te d States Magistrate Judge Robert H. Walker, entered in this cause on April 20, 2009, r e ga r d i n g Respondents State of Mississippi, Jim Hood, and Jackie Parker's [14] Motion to D is m is s Petitioner Cornelius Taylor's [1] Petition for Habeas Corpus pursuant to § 2254. Magistrate Judge Walker recommends that the petition be denied as time-barred. Taylor timely file d his Objection. The Court has conducted a de novo review of his objections, and the Court is o f the opinion that the findings and conclusions of the Magistrate Judge should be adopted. FACTS AND PROCEDURAL HISTORY T a ylo r was indicted on charges of capital rape, sexual battery, and child molestation. He w a s acquitted of rape but convicted of sexual battery and child molestation in the Circuit Court of P e a r l River County, Mississippi. The trial court sentenced him to thirty years, with fifteen s u s p e n d e d , in the custody of the Mississippi Department of Corrections on the first count and c o n s e c u tiv e ly fifteen years, with five suspended, on the second count. After the Mississippi C o u rt of Appeals affirmed his conviction, the Mississippi Supreme Court denied certiorari on J a n u a ry 30, 2003. He did not seek certiorari from the United States Supreme Court nor did he file for post-conviction relief in the State court.

O n October 22, 2008, Taylor filed the instant Petition for a Writ of Habeas Corpus a r gu i n g selective prosecution, improper jury instruction, prosecutorial misconduct, the expert w i tn e s s ' s testimony was unfairly prejudicial, the Grand Jury minutes should be recorded, perjury b e fo re the Grand Jury, and witness tampering. DISCUSSION T a yl o r objects to the Magistrate Judge's recommendation, arguing that (1) it is Taylor's l a w ye r ' s fault that no petition for certiorari was filed to the United States Supreme Court and (2) T a ylo r did not file for post-conviction relief because he thought it would be redundant. He asks th a t his case not be dismissed for these failures. However, Judge Walker did not recommend that t h e case be dismissed because there was no petition for certiorari filed with the United States S u p re m e Court or because there was no post-conviction relief sought from the State court. Rather Judge Walker recommended that the petition be dismissed as untimely because the d e a d lin e to file it was April 30, 2004, but the petition was not filed until 2008. Taylor also argues the one year statute of limitations should be tolled because he has no e v i d e n c e that the Mississippi Court of Appeals ever issued a mandate and thus his conviction was n e v e r final. "To be entitled to equitable tolling, [Taylor] must show `(1) that he has been p u rs u in g his rights diligently; and (2) that some extraordinary circumstance stood in his way' and p re v e n te d timely filing," or he was actively misled by the defendant. Lawrence v. Florida, 549 U .S . 327, 336 (2007) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Cousin v. L e n s in g , 310 F.3d 843, 848 (5th Cir. 2002). Pro se status by itself does not qualify as an e x tra o rd in a ry circumstance. United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002). This equitable tolling argument was not presented to the Magistrate Judge. Waiver

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n o tw ith s t a n d in g , it fails on the merits. Taylor provides no evidence that the mandate was never is s u e d . He merely speculates that it was not. Further, he provides no evidence or authority that th e mandate was needed before he could seek habeas review. Even if the Court were to assume th a t the mandate never issued and assume that this was an extraordinary circumstance that p re v e n te d timely filing of his habeas petition, there is one final reason why this line of argument fa i l s . He does not show that he was diligently pursuing his rights in the approximately five years a n d six months since the time for direct review lapsed. Therefore, equitable tolling does not a p p l y. A fte r a de novo review of Taylor's objections, they are overruled, and Magistrate Judge W a l k e r ' s Proposed Findings of Fact and Recommendation are adopted as the opinion of this C o u rt. IT IS, THEREFORE, ORDERED AND ADJUDGED that the Proposed Findings of F a c t and Recommendation [17] of United States Magistrate Judge Robert H. Walker, entered on A p r il , 20, 2009, be, and the same hereby is, adopted as the opinion of this Court. I T IS FURTHER ORDERED AND ADJUDGED that the Motion to Dismiss [14] is G R A N T E D . Petitioner Cornelius Taylor's [1] Petition for Habeas Corpus is DISMISSED. A s e p a ra te judgment will be entered herein in accordance with this Order as required by FED. R. C IV. P. 58. S O ORDERED AND ADJUDGED this the 25 th day of September, 2009.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR. U N IT E D STATES DISTRICT JUDGE

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