Hoye v. Outlaw
ORDER adopting Report and Recommendations re 20 Report and Recommendations. Signed by Honorable David C. Bramlette, III on 9/20/2016 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 5:13-cv-184(DCB)(MTP)
ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on Magistrate Judge Michael T.
Parker’s Report and Recommendation (docket entry 20), to which no
objections were filed by the Petitioner. Having carefully reviewed
same, the Court finds as follows:
Before the Court is the pro se and in forma pauperis Petition
of Alonzo Hoye (“Hoye”) for Writ of Habeas Corpus pursuant to 28
incarcerated at the Mississippi State Penitentiary. He pled guilty
to one count of burglary in Adams County Circuit Court on May 11,
2009, and was sentenced the same day to a seven-year term of
imprisonment as an habitual offender.
By statute, there is no
direct appeal of a guilty plea in Mississippi, meaning that Hoye’s
conviction was final as of May 11, 2009.
On February 22, 2012,
Relief” in the Adams County Circuit Court, in which he challenged
his guilty plea and sentence.
On August 16, 2012, the circuit court denied Hoye’s motion by
written opinion. On December 7, 2012, Hoye submitted a “Motion for
Permission to Proceed Out of Time” in Adams County Circuit Court,
in which he sought permission to file an out-of-time appeal of that
court’s August 16, 2012, Order. On January 2, 2013, the circuit
court construed the motion as requesting leave to file a postconviction motion out of time, and denied it as time-barred
pursuant to Miss. Code § 99-39-5(2). On December 12, 2012, several
weeks before the circuit court ruled on Hoye’s motion to appeal
out-of-time, Hoye nonetheless filed a notice of appeal.
December 19, 2012, the Mississippi Supreme Court issued an order to
show cause, directing Hoye to explain within fourteen days why his
appeal should not be dismissed as untimely.
Supreme Court issued an order on February 12, 2012, to allow Hoye
to proceed out-of-time, but the court soon thereafter withdrew the
order as improvidently granted. On March 5, 2013, Hoye’s motion to
proceed in forma pauperis on appeal was denied by the Adams County
On April 24, 2013, Hoye was notified that he must
pay the costs of appeal or face dismissal.
Finally, on June 13,
2013, the Mississippi Court of Appeals issued a mandate dismissing
Hoye filed the instant petition on August 16, 2013.
response, Respondent Timothy Outlaw contends that the petition was
not timely filed and that it should be dismissed pursuant to 28
U.S.C. § 2244(d)(1).
Section 2244(d)(1) of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) provides that a one-year
period of limitations applies to an application for a writ of
habeas corpus, to run from the latest of: (A) the date on which the
judgment became final; (B) the date on which the impediment to
filing an application created by State action in violation of the
Constitution or United States law is removed; (C) the date on which
the constitutional right asserted was initially recognized by the
Supreme Court and made applicable retroactively; or (D) the date on
which the factual predicate of the claims presented could have been
discovered through the exercise of “due diligence.”
28 U.S.C. §
The time for filing a federal habeas petition can be
extended by the application of either statutory or equitable
Whether statutory tolling occurred during the period
between the judgment becoming final on June 14, 2000, and Hoye’s
filing of the federal petition for habeas corpus on February 3,
2015, is determined by reference to 28 U.S.C. § 2244(d)(2), which
provides for tolling of the one-year limitation period during the
time in “which a properly filed application for State postconviction or other collateral review” remains pending.
decision to apply the equitable tolling doctrine to the one-year
limitation period set forth in section 2244(d) rests within the
sound discretion of the district court.
F.3d 710, 713 (5th Cir. 1999).
Fisher v. Johnson, 174
Generally, equitable tolling is
appropriate only in “rare and exceptional circumstances.” Davis v.
Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
The Petitioner bears
the burden of proving the existence of rare and exceptional
Cockrell, 294 F.3d 626, 629 (5th Cir. 2002).
“applies principally 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.”
F.3d 510, 513 (5th Cir. 1999).
Ott v. Johnson, 192
The period of limitations set forth
in Section 2244(d) bars federal habeas review unless the prisoner
can demonstrate that the court’s “failure to consider the claims
will result in a fundamental miscarriage of justice.”
Thompson, 501 U.S. 722, 750 (1991); see also Calderon v. Thompson,
523 U.S. 538, 558 (1998)(noting that this exception survived the
passage of the Section 2244(d)).
The “fundamental miscarriage of
justice” exception is applicable only to the severely confined
category of actual-innocence, where prisoners must demonstrate that
new evidence “shows ‘it is more likely than not that no reasonable
juror would have convicted [the Petitioner].’”
Perkin, 133 S.Ct. 1924, 1927 (2013)(citing Schlup v. Delo, 513 U.S.
2298, 329 (1995)).
Petitioner failed to file his habeas petition within the time
Petitioner’s burglary conviction became final on May 11, 2009.
Accordingly, the deadline for filing a timely petition would have
been May 11, 2010.
Giving the Petitioner the full benefit of the
mailbox rule,1 the instant petition was filed on August 16, 2013 –
over three years beyond the deadline.
Even if the Petitioner were
entitled to statutory tolling for the span of time his claims were
considered in state court, his petition is still outside the bounds
of the one-year period. Likewise, the Petitioner is not entitled
to equitable tolling, as he alleges no circumstances where he was
“actively misled by the defendant about the cause of action or
[was] prevented in some extraordinary way from asserting his
Ott, 192 F.3d at 513.
Federal habeas review is thus barred in this case unless Hoye
can demonstrate that the court’s “failure to consider the claims
will result in a fundamental miscarriage of justice.” Coleman, 501
U.S. at 750.
Federal case law is abundantly clear that the
miscarriage of justice exception is strictly limited to cases of
actual innocence and does not reach questions of due process in any
Schlup, 513 U.S. at 316 (“Without any new evidence
of innocence, even the existence of a concededly meritorious
violation is not in itself sufficient to establish a miscarriage of
justice that would allow a habeas court to the merits of a barred
The Petitioner has filed no response to the
The mailbox rule applies to the date of filing prisoner
petitions. Under the mailbox rule, a pro se federal habeas
petition is deemed filed on the date the prisoner delivered the
petition to prison officials for mailing to the district court.
Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999).
Respondent’s argument that the instant petition is untimely, and he
presents no claims of actual innocence in his petition.
Because the petition was not timely filed and does not fall
under any exception to Section 2244(d), it is time barred and
Magistrate Judge Parker finds that the petition should be dismissed
with prejudice. The Court adopts the Report and Recommendation and
IT IS HEREBY ORDERED that Magistrate Judge Michael T. Parker’s
Report and Recommendation (docket entry 20) is ADOPTED as the
findings and conclusions of this Court;
FURTHER ORDERED that the Petition is dismissed with prejudice.
A Final Judgment dismissing the Petition with prejudice will
follow in accordance with Federal Rule of Civil Procedure 58.
SO ORDERED, this the 20th day of September, 2016.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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