Holder v. Byrd
ORDER deferring ruling on Respondent's Motion to Dismiss 6 and the Magistrate Judge's Report and Recommendation 10 . Respondent has 10 days to supplement the record as set forth in the Order. If Respondent fails to do so, an evidentiary hearing will be scheduled by the Court. The Petitioner shall respond to the supplementation within 14 days. Failure to do so may result in adverse consequences. Signed by District Judge Keith Starrett on 7/25/13 (scp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 2:12-CV-148-KS-MTP
For the reasons stated below, the Court defers ruling on Respondent’s Motion
to Dismiss  and the Magistrate Judge’s Report and Recommendation . There are
factual issues that must be developed before the Court can determine whether
Plaintiff’s petition is time-barred.
The AEDPA provides that petitions for federal habeas relief must be filed within
one year of “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).
This time period is statutorily tolled while any properly filed motion for state postconviction relief is pending. 28 U.S.C. § 2244(d)(2). Petitioner’s judgment became final
on April 1, 2009. He moved for post-conviction relief on May 27, 2010, leaving sixteen
days to file a habeas petition after the state courts resolved his motion. On September
29, 2011, the Mississippi Court of Appeals issued a mandate affirming the lower court’s
denial of post-conviction relief. Petitioner had until October 17, 2011, to file a habeas
petition, but he did not file one until August 9, 2012. Therefore, unless equitable or
statutory tolling applies, his petition is time-barred.
In his objection  to the Magistrate Judge’s Report and Recommendation,
Petitioner asserted for the first time that LaTasha Clay, an individual working for the
Inmate Legal Assistance Program (“ILAP”), advised him that he had one year after the
state court resolved his motion for post-conviction relief to file a habeas petition. The
AEDPA’s one-year limitation period shall be tolled if there is an “impediment to filing
an application created by State action in violation of the Constitution or laws of the
United States” which actually prevents the applicant from filing. 28 U.S.C. §
2244(d)(1)(B). The Fifth Circuit has indicated that bad advice from the ILAP may
constitute an impediment to filing, and that district courts should develop the facts
surrounding such allegations. See Howard v. Epps, 250 F. App’x 73, 74-75 (5th Cir.
2007) (petitioner was entitled to statutory tolling where he claimed to have received
inaccurate information from ILAP); Thames v. Wilson, 179 F. App’x 241, 242 (5th Cir.
2006) (district court’s judgment vacated and remanded for development of facts
pertinent to the application of § 2244(d)(1)(B) where petitioner claimed ILAP was
Respondent cites Neal v. Bradley, No. 2:05-CV-67-M-B, 2006 U.S. Dist. LEXIS
69395, at *10 (N.D. Miss. 2006), arguing that Petitioner had the correct information
regarding the AEDPA statute of limitations because of the post-conviction packet
routinely provided to inmates. But in Neal the respondent provided evidence that the
petitioner requested and received five copies of the “post-conviction packet.” Id. at *11.
Here, the record contains no evidence concerning the assistance Petitioner received
from ILAP, and Petitioner’s allegations merit factual development. Thames, 179 F.
App’x at 242.
Therefore, the Court defers ruling on Respondent’s Motion to Dismiss  and the
Magistrate Judge’s Report and Recommendation . Respondent has ten days to
supplement the record and provide evidence that Petitioner was, in fact, provided
accurate information concerning the relevant limitation periods. If Respondent fails to
supplement the record, the Court will schedule an evidentiary hearing.
Once Respondent supplements the record, Petitioner shall respond to the
evidence within fourteen days. Failure to timely respond may result in adverse
consequences, including the dismissal of the habeas petition.
SO ORDERED AND ADJUDGED this 25th day of July, 2013.
s/ Keith Starrett
UNITED STATES DISTRICT JUDGE
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