Taylor v. Streeter

Filing 10

ORDER granting 7 Motion to Dismiss; adopting 8 Report and Recommendations of U.S. Magistrate Judge for the reasons set out in the order. The Report and Recommendation of United States Magistrate Judge Ball is adopted as the finding of this Court, and the petition is dismissed with prejudice. A judgment will be entered in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on October 31, 2011. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
JAMES TAYLOR
VS.

PETITIONER
CIVIL ACTION NO.: 3:11-cv-215-DPJ-FKB

JESSE JAMES STREETER

RESPONDENT

ORDER
This action is brought by a state prisoner pursuant to 28 U.S.C. § 2254. The United
States Magistrate Judge F. Keith Ball entered a report and recommendation [8] concluding that
James Taylor’s petition for writ of habeas corpus [1] was untimely and recommending dismissal.
Presently before the Court is Taylor’s objection [9] to the report and recommendation. For the
reasons stated herein, the Court adopts the report and recommendation and finds that Taylor’s
petition is dismissed.
I.

Facts/Procedural History
Taylor was convicted in the Circuit Court of Copiah County, Mississippi, of one count of

selling cocaine within 1500 feet of a school and sentenced to 60 years’ imprisonment. Taylor
sought review of his conviction and sentence by the Mississippi Court of Appeals, which
affirmed the Circuit Court’s judgment on June 22, 1999. Taylor declined to seek further statecourt direct review through a petition for rehearing by the appellate court or a petition for
certiorari from the state Supreme Court. Taylor filed an application for post-conviction relief in
the Mississippi Supreme Court on June 10, 2002, which was denied on October 4, 2002. Taylor
filed a second state-court application for post-conviction relief on December 21, 2010, which
was denied on January 26, 2011.

Taylor filed the present petition on or about April 5, 2011.1 After the Mississippi
Attorney General moved to dismiss the petition as untimely [7], Magistrate Judge Ball entered a
report and recommendation [8] that the petition be dismissed. Taylor objected to the Magistrate
Judge’s report and recommendation [9].
II.

Analysis
The issue is the timeliness of Taylor’s petition. The filing of a petition for writ of habeas

corpus under 28 U.S.C. § 2254 is subject to a one-year statute of limitation under the AntiTerrorism and Effective Death Penalty Act of 1996 (AEDPA):
(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 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.

1

A prisoner’s pro se federal habeas petition is considered “filed” the day it is delivered to
prison officials for mailing to the court. Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999)
(citing Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998)). Because Taylor’s petition was
signed on April 5, 2011, and received by the Court Clerk on April 13, 2011, the Court assumes it
was delivered to prison officials on April 5, 2011.
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28 U.S.C. § 2244(d) (2006).
The Magistrate Judge correctly found Taylor’s petition was untimely under § 2244(d).
Taylor’s conviction was final on July 6, 1999—when his time expired for seeking review of the
June 22, 1999, Mississippi Court of Appeals decision affirming his conviction and sentence. See
Miss. R. App. P. 40(a) (allowing 14 days after the entry of a decision to seek review by filing
petition for rehearing); see also Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003)
(conviction is final for purposes of § 2244(d)(1)(A) after expiration of time for seeking direct
review). Under § 2244(d)(1)(A), the one-year statute of limitations accrued that day, giving
Taylor until July 6, 2000 to file his federal habeas petition. Because he declined to file an
application for state post-conviction or other collateral review before the one-year period
expired, but waited instead until June 10, 2002, Taylor’s time to file his federal habeas petition
was not tolled under §2244(d)(2). See Flanagan v. Johnson, 154 F.3d 196, 199 n.1 (5th Cir.
1998) (“Under the plain language of §2244(d)(2), any time that passed between the time that
[petitioner’s] conviction became final and the time that his state application for habeas corpus
was properly filed must be counted against the one year period of limitation.”); see also Curtiss
v. Mount Pleasant Corr. Facility, 338 F.3d 851, 853–54 (8th Cir. 2003). Thus, the Court agrees
with the Magistrate Judge that Taylor’s April 5, 2011, habeas petition is untimely under
§ 2244(d) and should be dismissed.
Taylor objects to the Magistrate Judge’s determination, arguing that the § 2244(d)
“procedural bar” does not prevent the Court from considering a prisoner’s claim of being held in
violation of his 6th, 8th and 14th Amendment rights. Pet.’s Objection [9] at 1–2, 4. Because the
one-year period in § 2244(d)(1) serves as statute of limitations, not a jurisdictional bar, it can be

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equitably tolled in “rare and exceptional circumstances.” Davis v. Johnson, 158 F.3d 806, 811
(5th Cir. 1998). Rare and exceptional circumstances occur where “the plaintiff is actively misled
by the defendant about the cause of action or is prevented in some extraordinary way from
asserting his rights.” Melancon v. Kaylo, 259 F.3d 401, 407–08 (5th Cir. 2001) (citation
omitted). Here, Taylor fails to provide any explanation for his delayed filing. His allegation of
being held in violation of his constitutional rights is not, in itself, “rare and exceptional.” Even if
he had presented an explanation for the Court to evaluate, Taylor would have to account for the
nearly 12 years he waited from July 6, 1999 to April 5, 2011 to file his federal habeas petition.
Melancon, 259 F.3d at 407–08 (“Equitable tolling should only be applied if the applicant
diligently pursues § 2254 relief.”) (citations omitted) (denying equitable tolling for four month
delay). The Court finds no basis for equitable tolling of the statute of limitations for Taylor’s
federal habeas petition.
Taylor also argues that the United States Supreme Court decision Apprendi v. New
Jersey, 530 U.S. 466 (2000), rendered his sentence illegal, using that case’s June 26, 2000, date
to commence the one-year statute of limitations pursuant to § 2244(d)(1)(C) does not save a
petition filed almost 11 years later.
Taylor further contends that “the three years statute of limitations” may be waived when
a “fundamental constitutional right is implicated” or when “there has been an intervening
decision of the Supreme Court of, either, the State of Mississippi, or the United States, which
would have actually adversely affected the outcome, of his conviction or sentence, or that, he has
evidence not reasonably discoverable, at the time of trial.” Pet.’s Objection [9] at 3–4. Taylor
cites Miss. Code Ann. § 99-39-5(2) to support this argument, but this three-year statute of

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limitations and its exceptions apply to post-conviction relief in state court, not federal habeas
corpus. As Taylor seems to acknowledge elsewhere, the AEDPA governs this petition. See
Pet.’s Objection [9] at 4. And in any event, other than the Apprendi case decided in 2000 and
discussed above, Taylor fails to explain why these exceptions apply in his case.
Finally, Taylor’s other “objections” address the substance of his habeas petition but not
its dismissal for untimeliness. See id. at 2–3, 5–8. In summary, the Court has considered
Taylor’s objections and finds them to be without merit.
IT IS, THEREFORE, ORDERED that the Report and Recommendation of United States
Magistrate Judge Ball is adopted as the finding of this Court, and the petition is dismissed with
prejudice.
A separate judgment will be entered in accordance with the Order as required by Rule 58
of the Federal Rules of Civil Procedure.
SO ORDERED AND ADJUDGED this the 31st day of October, 2011.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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