Westbrook v. King
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 13 Report and Recommendations of Magistrate Judge John M. Roper entered 10/26/2012, and Granting Respondent's Motion to Dismiss. Petitioner's Petition is dismissed as time-barred pursuant to 28 USC 2244(d)(1). Signed by Chief District Judge Louis Guirola, Jr on 2/20/2013. (avm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
DANNY A. WESTBROOK, #132067
CAUSE NO. 1:12CV219LG-JMR
ORDER ADOPTING REPORT AND RECOMMENDATION
GRANTING RESPONDENT’S MOTION TO DISMISS
This cause comes before the Court on the Report and Recommendation of
United States Magistrate Judge John M. Roper entered on October 26, 2012.
Magistrate Judge Roper reviewed the Respondent’s Motion to Dismiss  as well as
the Petitioner’s response  and determined that the Motion should be granted for
Petitioner’s failure to file his Petition within the one-year statute of limitations
provision of the AEDPA, 28 U.S.C. § 2244(d)(1).
Petitioner filed his objections to the Report and Recommendation, which have
been examined by this Court. Petitioner argues his “mailbox rule” filing on May 4,
2012, allows him to meet the April 16, 2012, federal habeas filing deadline. The
Petitioner also argues that he is entitled to equitable tolling of the filing deadline
because he was actively misled by the State and the State suppressed exculpatory
and material evidence.
Petitioner was convicted of murder on August 8, 2007. The conviction was
affirmed by the Mississippi Supreme Court on September 29, 2009. Westbrook v.
State, 29 So. 3d 828 (Miss. 2009), reh’g denied December 15, 2009, cert denied
March 11, 2010, and cert. denied October 4, 2010. On October 14, 2010, Petitioner
filed a post-conviction motion in the Mississippi Supreme Court which was denied.
A subsequent motion, treated as a motion to reconsider, was also denied. A second
application for leave to proceed in trial court with a post-conviction motion was filed
with the Mississippi Supreme Court on May 31, 2011. In the second application,
Petitioner argued that the motion for leave should not be considered barred because
“biological evidence . . . exists . . . the results were not known at the time of trial.”
He included an argument concerning the toxicology report. The Mississippi
Supreme Court determined the second motion for leave to proceed did not meet any
exception to the procedural bar and was dismissed as successive and frivolous.
Petitioner’s motion for reconsideration was denied. A motion for writ of certiorari to
reconsider was dismissed on September 16, 2011. A third application for postconviction leave to proceed was dismissed as procedurally barred on March 21,
2012, and Petitioner was sanctioned one hundred dollars for filing a frivolous
A petitioner seeking federal habeas relief must file his federal petition within
one year from “the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review.” 28 U.S.C. §
2244(d)(1)(A). In reviewing the record, the Court calculates that the latest possible
date Petitioner could have filed his § 2254 petition was April 16, 2012. Here,
Petitioner signed his § 2254 petition on May 4, 2012, and it was filed on July 13,
2012. As such, it is facially untimely. Petitioner argues that it is timely under the
“mailbox rule.” Under the mailbox rule, a petitioner’s pro se federal habeas petition
is deemed filed on the date it is delivered to prison officials for mailing to the
district court. Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998). However,
even assuming that Petitioner delivered his § 2254 petition to the prison officials on
the date that it was signed it is nonetheless untimely.
Petitioner also alleges that equitable tolling applies and that his § 2254
petition is therefore timely. A court may toll the limitations period only in “rare
and exceptional circumstances.” Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.
1998), cert. denied 526 U.S. 1074 (1999). Petitioner argues that his habeas petition
is late because the State has been “elusive and evasive by their rulings and nonresponse to letters.” These allegations are not supported by the record. In fact,
Petitioner has unsuccessfully argued the same substantive arguments raised here
on several occasions in his State court petitions and motions. There is no showing
that he was “actively misled” or that some “extraordinary” circumstances stood in
his way and prevented him from timely filing his habeas petition. Mathis v. Thaler,
616 F.3d 461, 474-5 (5th Cir. 2010), cert. denied __ U.S.__ 131 S.Ct. 1574 (2011).
Therefore, having conducted a de novo review of this matter, the Court, being
duly advised in the premises, finds that said Report and Recommendation should be
adopted as the opinion of this Court.
IT IS THEREFORE ORDERED AND ADJUDGED that the Report and
Recommendation of United States Magistrate Judge John M. Roper entered in this
cause on October 26, 2012  should be, and the same hereby is, ADOPTED as
the finding of this Court.
IT IS FURTHER ORDERED AND ADJUDGED that the Petitioner’s
Petition is DISMISSED as time-barred pursuant to 28 U.S.C. § 2244(d)(1).
SO ORDERED AND ADJUDGED this the 20th day of February, 2013.
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
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