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McIntosh v. State

United States District Court, Fifth Circuit

August 26, 2013

CLINTON A. MCINTOSH, Petitioner,
v.
STATE OF MISSISSIPPI, et al., Respondents.

MEMORANDUM OPINION AND ORDER

MICHAEL P. MILLS, Chief District Judge.

This matter comes before the Court on the pro se petition of Clinton McIntosh, Mississippi prisoner no. 19078, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondents have moved to dismiss the petition, and Petitioner has responded to Respondents' motion to dismiss. The matter is now ripe for resolution. For the reasons set forth below, Respondents' motion will be granted, and the instant petition will be dismissed as untimely filed under 28 U.S.C. § 2244(d).

Facts and Procedural Background

Petitioner was convicted of murder in the Circuit Court of Chickasaw County, Mississippi, and was sentenced on March 19, 1992, to serve a life sentence in the custody of the Mississippi Department of Corrections. ( See Respt's Mot. to Dismiss, Ex. A). On September 21, 1999, the Mississippi Court of Appeals affirmed his conviction and sentence. ( See id., Ex. B; see also McIntosh v. State, 749 So.2d 1235 (Miss. Ct. App. 1999) (Cause No. 97-KA-00895-COA). It does not appear that Petitioner sought further review of his conviction and sentence until 2007, when he filed what was construed as a petition for post-conviction relief. The Mississippi Supreme Court dismissed the petition as untimely. ( See, e.g., Respt's Mot. to Dismiss, Exs. C and D). Petitioner subsequently filed three motions for rehearing, all of which were dismissed by the Mississippi Supreme Court. ( See, e.g., id., Exs. E, F, G, H, and I). The Petitioner filed the instant petition on or about May 18, 2013.

Law and Analysis

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), which carries a one-year limitations period, governs federal habeas petitions filed after statute's effective date. See, e.g., Robertson v. Cain, 324 F.3d 297, 301 (5th Cir. 2003). Petitioner maintains that the one-year statute of limitations is inapplicable to his case, as he was sentenced in 1992, prior to the passage of the AEDPA. However, the AEDPA governs all petitions filed after the statute's effective date. Lindh v. Murphy, 521 U.S. 320, 324-26 (1997). The AEDPA is applicable to the instant petition.

The issue of whether Respondents' motion should be granted turns on 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).

At the outset, the Court finds that the limited exceptions as set forth in § 2444 (d)(1)(B-D) are not implicated in this case. Therefore, the Court considers when Petitioner's judgment "became final" for purpose of the AEDPA. A state judgment generally becomes final "upon denial of certiorari by the Supreme Court or expiration of the time" to seek it. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999). When a petitioner fails to seek discretionary review in State court, however, he "stops the appeal process." Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). When Petitioner failed to timely a file a petition for rehearing following the September 21, 1999, judgment of the Mississippi Court of Appeals, he stopped the appeal process and was unable to seek further direct review of his conviction and sentence by way of a petition for writ of certiorari with either the Mississippi Supreme Court or the United States Supreme Court. As such, his conviction became final when the time expired for him to seek such review, which was October 5, 1999 - fourteen days after his convictions were affirmed. See Miss. R. App. P. 40; see also Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 653-54 (2012) (holding that when a petitioner does not pursue direct review all the way to the Supreme ...


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