The opinion of the court was delivered by: Michael P. Mills Chief Judge United States District Court Northern District OF Mississippi
This matter comes before the court on the pro se petition of McKennsey Austin for a writ of habeas corpus under 28 U.S.C. § 2254. The state has moved to dismiss the petition as untimely filed, and the petitioner has responded. The matter is ripe for resolution. For the reasons set forth below, the instant petition for a writ of habeas corpus shall be dismissed as untimely filed.
Facts and Procedural Posture
McKennsey Austin was convicted of murder in the Circuit Court of Coahoma County, Mississippi, and sentenced to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections. The court ordered that the sentence run consecutively to "any and all sentences previously imposed." The petitioner was acquitted of the charge of drive-by shooting contained in Count II of the indictment. On September 30, 2003, the Mississippi Court of Appeals affirmed Austin's conviction and sentence. Austin v. State, 860 So. 2d 1224 (Miss. App. 2003)(Cause No. 2001-KA-00920-COA), reh'g. denied, December 9, 2003. The petitioner declined to timely seek discretionary review in state court by filing a petition for writ of certiorari in the supreme court as provided for in Mississippi Rule of Appellate Procedure 17(b). By failing to seek the second step of discretionary review in a timely manner, the petitioner "stopped the appeal process" and thus could not seek review in the United States Supreme Court . Roberts v. Cockrell, 319 F.3d 690 (5th Cir. 2003). The petitioner filed an "Application for Leave to Proceed in the Trial Court" and a "Motion for Post-Conviction Relief Pursuant to Mississippi Code § 99-39-1 et seq." on December 19, 2006, in the Mississippi Supreme Court. On January 26, 2007, the supreme court denied the application as both untimely filed and without merit. The petitioner filed a second post-conviction application and motion in the supreme court on February 15, 2007. The Mississippi Supreme Court denied that application as a successive writ on March 1, 2007.
Resolution of this matter can be found in 28 U.S.C. § 2244(d), which provides:
(d)(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 the 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. 28 U.S.C. § 2244(d)(1) and (2).
Thus, one wishing to file a federal petition for a writ of habeas corpus must do so within one year of the date his conviction becomes final -- unless his case falls within the limited exceptions set forth in 28 U.S.C. § 2244(d). The one-year limitations period is tolled during the pendency of a properly filed state motion for post-conviction collateral relief. Cantu-Tzin v. Johnson, 162 F.3d 295 (5th Cir. 1998), cert denied, 119 S.Ct. 847 (1999).
The petitioner's conviction became final, and the statute of limitations for federal habeas corpus relief began to run, when the time for seeking further direct review in the state court expired, fourteen days after his motion for rehearing was denied by the court of appeals.MISS. R. APP. P. 17(b) (allowing fourteen (14) days to file a petition for writ of certiorari in the supreme court after the motion for rehearing is denied). Thus, the petitioner's conviction became final on December 23, 2003 (December 9, 2003 14 days). That would set the deadline for filing his federal petition for a writ of habeas corpus to December 23, 2004, one year after his conviction became final. Although the petitioner filed an "Application For Leave To Proceed In The Trial Court" and "Motion for Post-Conviction Relief Pursuant to Mississippi Code § 99-39-1 et seq." in the Mississippi Supreme Court on December 19, 2006, that was 726 days after the deadline for filing a habeas petition expired. On January 26, 2007, the supreme court denied Austin's application as both untimely and without merit. Likewise, the petitioner's second post-conviction application and motion of February 15, 2007, was filed after the expiration of the limitations period and did not operate to ...