Brassfield v. Simms
Filing
17
ORDER granting 7 Motion of Respondent to Dismiss; adopting Report and Recommendations of United States Magistrate Judge Robert H. Walker re 14 Report and Recommendations. A Final Judgment dismissing this case with prejudice shall be entered. 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 12/15/2014 (Lewis, Nijah)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
UNDRANECKIO DESMOND BRASSFIELD
VS.
PETITIONER
CIVIL ACTION NO. 3:14-cv-405-WHB-RHW
BRENDA SIMMS
RESPONDENT
OPINION AND ORDER
This
cause
is
before
the
Court
on
the
Report
and
Recommendation (“R and R”) of United States Magistrate Judge Robert
H. Walker.
After considering the R and R1 and the other pleadings
in this case2, the Court finds it should be adopted in
its
entirety.
I.
Discussion
On June 12, 2003, having been found guilty of crimes including
armed robbery, kidnapping, and carjacking, Undraneckio Desmond
Brassfield (“Brassfield”), was sentenced in state court as follows:
Count VI: Armed Robbery - 30 years; Count II: Kidnapping - 30 years
to
run
consecutively
with
sentence
in
Count
VI;
Count
III:
Kidnapping - 30 years to run consecutively with sentence in Counts
1
The parties were required to file objections to the R and
R on or before October 24, 2014. On Petitioner’s Motion, the
time for filing objections was extended to November 14, 2014. No
objections have been filed, and the time for so doing has now
expired.
2
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).
VI and II; Count IV: Kidnapping - 30 years to run consecutively
with sentence in Counts VI, II, and III; Count V: Kidnapping - 30
years to run consecutively with sentence in Counts VI, II, III, and
IV; COUNT I: Carjacking - 10 years to run consecutively with
sentence in Counts VI, II, III, IV, and V.
Brassfield appealed,
and his conviction and sentences were affirmed by the Mississippi
Court of Appeals.
Ct. App. 2004).
See Brassfield v. State, 905 So.2d 754 (Miss.
No further direct appeals were taken.
Beginning in 2006, Brassfield filed several pleadings seeking
post conviction relief in the state courts.
Brassfield was denied
relief at the circuit court level on October 3, 2007.
On February
11, 2008, Brassfield filed a “Motion for a Leave to Prevent Being
Time Barred”, which was denied by the Mississippi Supreme Court on
May 13, 2008. On January 5, 2012, Brassfield filed an “Application
for Leave to Proceed in the Trial Court”, which the Mississippi
Supreme Court denied as time barred on February 15, 2012.
On July
27, 2012, Brassfield filed another petition for writ of mandamus,
which was denied by the Mississippi Supreme Court on August 27,
2013, on a finding that he had not first sought relief at the
circuit court level. On October 30, 2013, Brassfield filed another
“Application for Leave to Proceed in the Trial Court”, which the
Mississippi Supreme Court denied as time barred, and on the grounds
of res judicata, on December 2, 2013.
On or about May 20, 2014, Brassfield filed the Petition Under
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
2
response, the State of Mississippi, through its Attorney General
Jim Hood, filed a motion seeking its dismissal on the grounds that
it was untimely filed.
On review, United States Magistrate Judge
Robert H. Walker entered a R and R, recommending that the Petition
be dismissed as untimely.
and
R,
Judge
Walker
See R and R [Docket No. 14].
found
that
the
Judgment
in
In the R
Brassfield’s
criminal case became final on December 14, 2004, which was fourteen
days after his conviction and sentence were affirmed on direct
appeal. Id. at 3.
To be timely under the Anti-Terrorism and
Effective Death Penalty Act [“AEDPA”], codified at 28 U.S.C. §
2244(d), Brassfield was required to file his 2254 Petition on or
before December 14, 2005.
As Brassfield did not file his 2254
Petition until May 20, 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
Brassfield
conviction
relief
did
in
not
the
file
state
any
pleadings
courts
before
limitations period expired on December 14, 2015.
Judge
Walker
found
that
Brassfield
3
had
seeking
the
one-year
Id. at 3.
failed
to
post
show
Next,
that
equitable tolling should apply in this case.
See id. at 3-4.
Upon
finding Brassfield’s 2254 Petition was filed 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 Brassfield’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
Brassfield’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 October 7, 2014, Report and
Recommendation of United States Magistrate Judge Robert H. Walker
[Docket No. 14], is hereby adopted as the ruling of this Court.
IT IS FURTHER ORDERED that the Motion of Respondent to Dismiss
[Docket No. 7] 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.
4
SO ORDERED this the 15th day of December, 2014.
s/ William H. Barbour Jr.
UNITED STATES DISTRICT JUDGE
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