Boyd v. STATE OF MISSISSIPPI
Filing
14
ORDER granting 11 Motion of Respondent to Dismiss; adopting as the ruling of this Court the Report and Recommendations re 12 Report and Recommendations. A Final Judgment dismissing this case with prejudice shall be entered this day. IT IS FURTHER ORDERED that a Certificate of Appealability should not issue. Petitioner has failed to make a substantial showing of the denial of a constitutional right. Signed by District Judge William H. Barbour, Jr on 11/4/14 (Lewis, Nijah)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ELMER BOYD
PETITIONER
VS.
CIVIL ACTION NO. 3:14-cv-128-WHB-RHW
WARDEN RICE1
RESPONDENT
OPINION AND ORDER
This
cause
is
before
the
Court
on
the
Report
and
Recommendation of United States Magistrate Judge Robert H. Walker.
After considering the R and R2 and the other pleadings in this
case3, the Court finds it should be adopted in its entirety.
I.
Discussion
On August 13, 2002, Petitioner, Elmer Boyd (“Boyd”), pleaded
guilty to one count of armed robbery in state court, and was
sentenced to a 20-year term of imprisonment. Two additional counts
of armed robbery were nolle prossed in exchange for the guilty
plea.
Boyd did not appeal and did not file any applications or
motions for post-conviction relief in state court.
On or about February 14, 2014, Boyd filed the Petition Under
1
Jerry Buscher is actually the Warden at East Mississippi
Correctional Facility.
2
The parties were required to file objections to the R and
R on or before October 8, 2014. No objections were filed.
3
As Petitioner is proceeding in this case pro se, the
allegations in his pleadings have been liberally construed. See
United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody (“2254 Petition”), which is presently before the Court. In
response, the State of Mississippi, through its Attorney General
Jim Hood, filed a motion seeking its dismissal on the grounds that
it was untimely.
H.
Walker
On review, United States Magistrate Judge Robert
entered
a
Report
and
Recommendation
(“R
and
R”),
recommending that the Petition be dismissed as untimely. See R and
R [Docket No. 12].
In the R and R, Judge Walker found that the
Judgment in Boyd’s criminal case became final on September 12,
2002.
Id. at 3.
To be timely under the Anti-Terrorism and
Effective Death Penalty Act [“AEDPA”], codified at 28 U.S.C. §
2244(d), Boyd was required to file his 2254 Petition on or before
September 12, 2003.
As Boyd did not file his 2254 Petition until
February 14, 2014, Judge Walker found, and this Court agrees, that
the Petition is time barred.
See 28 U.S.C. § 2244(d)(providing
persons in custody pursuant to a state court judgment a one-year
period in which to seek federal habeas corpus relief).
Judge Walker then considered whether the applicable one-year
limitations period was extended either (1) by one or more of the
exceptions enumerated in 28 U.S.C. § 2244(d), or (2) by the
doctrine of equitable tolling.
On these issues, Judge Walker
found that the limitations period was not
statutorily tolled
because Boyd had not filed any motions seeking post conviction
relief in state court.
Id. at 3.
Next, Judge Walker found that
Boyd had failed to show that equitable tolling should apply in this
case.
See id. at 4.
Upon finding Boyd’s 2254 Petition was filed
2
after the applicable one-year statute of limitations expired, and
that the limitations period had not been statutorily or equitably
tolled, Judge Walker recommended that the Motion to Dismiss be
granted, and Boyd’s 2254 Petition be dismissed, with prejudice, as
untimely.
After reviewing the R and R, to which no objection has been
filed, as well as Boyd’s 2254 Petition and the other pleadings in
this case, the Court agrees that the Petition is time barred and
should be dismissed for that reason.
Accordingly, the Court will
adopt Judge Walker’s R and R recommending the dismissal of this
case.
II.
Conclusion
For the foregoing reasons:
IT IS THEREFORE ORDERED that the September 24, 2014, Report
and Recommendation of United States Magistrate Judge Robert H.
Walker [Docket No. 12], is hereby adopted as the ruling of this
Court.
IT IS FURTHER ORDERED that the Motion of Respondent to Dismiss
[Docket No. 11] is hereby granted.
A Final Judgment dismissing
this case with prejudice shall be entered this day.
IT IS FURTHER ORDERED that a Certificate of Appealability
should not issue.
Petitioner has failed to make a substantial
showing of the denial of a constitutional right.
SO ORDERED this the 4th day of November, 2014.
s/ William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE
3
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