Hutto, III v. Taylor et al
ORDER denying as moot 15 Motion to Extend Deadline as stated in the Order. Signed by Chief District Judge Daniel P. Jordan III on January 6, 2021. (SP)
Case 3:20-cv-00098-DPJ Document 24 Filed 01/06/21 Page 1 of 3
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JAMES HUTTO, III
CIVIL ACTION NO. 3:20-cv-98DPJ
BURL CAIN, Commissioner, Mississippi
Department of Corrections and LYNN FITCH,
Attorney General of the State of Mississippi
Petitioner James Hutto seeks a second extension of the deadline to file his habeas petition
under 28 U.S.C. § 2254. See Pet’r Mot. . For the following reasons, the Court denies the
motion as moot.
Hutto’s petition was originally due July 14, 2020, but his appointed attorneys sought an
extension based on equitable tolling and the ongoing Coronavirus pandemic. See id. Respondents
did not object, so on June 26, 2020, the Court granted the unopposed motion and equitably tolled the
filing deadline until October 12, 2020. See Order . On September 22, 2020, Hutto asked the
Court to push that deadline back to December 11, 2020. Pet’r Mot. . This time, Respondents
did object and filed a response on October 7, 2020. See Resp.ts’ Resp. . Hutto replied the
following day—Thursday, October 8—but that left the Court little time to rule before the Monday,
October 12, 2020 filing deadline. See Pet’r Reply . Given the short fuse, Hutto did the prudent
thing and filed his Petition on October 12, 2020. See Pet’r Pet. . The Petition is 91 pages long,
raises 19 grounds for relief, and includes exhibits totaling 170 pages. Id.
Although the Petition seems thorough, Hutto notes in it that if the Court were to grant his
second motion for equitable tolling, he would “refile this Petition in accordance with the tolled statute
of limitations.” Id. at 1. He later notes that the pandemic has prevented his attorneys from
Case 3:20-cv-00098-DPJ Document 24 Filed 01/06/21 Page 2 of 3
conducting a thorough investigation—though he provides no specifics—and asks the Court to grant
his “previously filed motion requesting equitable tolling so counsel may complete its investigation.”
Id. at 90 n.9.
Respondents opposed Hutto’s motion to extend the filing deadline for two reasons: (1) no
jurisdiction exists to equitably toll the statute of limitations before a petition is filed and (2) Hutto has
not shown that the pandemic continued to delay the investigation. The jurisdictional argument is
now moot, but so is the need for an extension.
Starting with jurisdiction, Respondents’ argument was stronger before Hutto filed his Petition.
While there is no binding precedent, district courts may lack jurisdiction to grant equitable tolling
pre-petition because there is no case or controversy at that time. See United States v. McFarland,
125 F. App’x 573, 574 (5th Cir. 2005) (unpublished opinion holding that no jurisdiction existed to
apply equitable tolling pre-petition under § 2255) (citing United States v. Leon, 203 F.3d 162, 164
(2d Cir. 2000) (“[W]e hold—as every other court to consider the question thus far has held—that a
federal court lacks jurisdiction to consider the timeliness of a § 2255 petition until a petition is
actually filed.”)); see also Wright v. Thaler, No. 3:11-CV-1084-K BH, 2011 WL 2678923, at *2
(N.D. Tex. June 15, 2011) (applying McFarland in § 2254 context).1
As noted, Respondents did not object to the original extension, and the Court did not consider
whether it had jurisdiction to grant the unopposed motion. But while jurisdiction may have been
lacking to toll the limitations period pre-petition, “the one-year period of limitations in § 2244(d)(1)
of AEDPA is to be construed as a statute of limitations, and not a jurisdictional bar.” Davis v.
Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Thus, it can be waived, and Respondents did so here as
to the original deadline.
Case 3:20-cv-00098-DPJ Document 24 Filed 01/06/21 Page 3 of 3
The Fifth Circuit’s jurisdictional holding in McFarland is unpublished and therefore “not
binding on this court.” Gate Guard Servs., L.P. v. Perez, 792 F.3d 554, 560 n.3 (5th Cir. 2015).
But assuming the Fifth Circuit would adopt and apply McFarland to a § 2254 case, the procedural
posture in the present case changed when Hutto filed his Petition on October 12, 2020—the date set
in the agreed Order. Now that the Petition has been filed, a true case or controversy exists, and the
Court has jurisdiction to consider an extension. See McFarland, 125 F. App’x at 574.
That said, the original basis for the request has likewise shifted. At first glance, Hutto’s
Petition appears quite thorough; it is not a skeletal placeholder. Indeed, he states in his Petition that
if the Court grants his request for more equitable tolling, he would “refile this Petition in accordance
with the tolled statute of limitations.” Pet’r Pet.  at 1 (emphasis added). In other words, Hutto
would merely refile the same Petition later. That would be redundant and unnecessary. The motion
is therefore denied as moot.2
IT IS, THEREFORE, ORDERED that James Hutto’s Second Motion for Equitable Tolling
in Light of the Current COVID-19 Pandemic  is hereby DENIED.
SO ORDERED AND ADJUDGED this the 6th day of January, 2021.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE
Hutto’s other motions suggest that investigation is ongoing. This Order would not prevent him
from seeking leave to amend the Petition and arguing that the claims should relate back under Federal
Rule of Civil Procedure 15(c)(1)(B) or, alternatively, that they would be subject to equitable tolling.
See Figueredo-Quinterov. McCain, 766 F. App’x 93, 97 (5th Cir. 2019) (examining Rule 15(c)(1)(B)
and alternatively equitable tolling in § 2254 context); Ramey v. Davis, 314 F. Supp. 3d 785, 800 (S.D.
Tex. 2018) (same), certificate of appealability granted in part, denied in part, 942 F.3d 241 (5th Cir.
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