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Warner v. King

United States District Court, Fifth Circuit

October 18, 2013

JERRY LEE WARNER #84411, Petitioner,
v.
RONALD KING, Respondent.

REPORT AND RECOMMENDATION

JOHN M. ROPER, Magistrate Judge.

This matter is before this court on the Petition for Writ of Habeas Corpus filed by Jerry Lee Warner [Warner], pursuant to 29 U.S.C. § 2254. A Motion to Dismiss [7] the petition was filed on behalf of Ronald King [King] on May 1, 2013. The Court, having been advised in the premises and having considered the entire record, finds that the Respondent's Motion to Dismiss should be granted and that Warner's Petition for Writ of Habeas Corpus should be denied.

STATEMENT OF THE CASE

Warner was convicted of armed robbery in January 1994 in the Circuit Court of Holmes County, Mississippi, and was sentenced on April 7, 1994. [1, p. 1.] He was sentenced to serve a term of thirty (30) years in the custody of the Mississippi Department of Corrections [MDOC] as a habitual offender. [7-1.] The conviction and sentence were affirmed by the Mississippi Court of Appeals on March 26, 1996. Warner v. State, 678 So.2d 1030 (Miss. Ct. App. 1996). Warner did not file a petition for rehearing in the Mississippi Court of Appeals as provided for in Mississippi Rule of Appellate Procedure 40. The respondent argues that by failing to timely seek the first step of discretionary review, Warner stopped the appeal process and was unable to pursue direct review in the Mississippi Supreme Court or the United States Supreme Court. [7, p. 3.] As such, Warner's conviction became final when the time for seeking further direct review in the state court expired, or fourteen (14) days after his conviction was affirmed on direct appeal. ( Id. )

According to Warner, he was deprived of his constitutional rights when the State allegedly failed to prove the elements of the habitual offender statute during his trial. [1, p. 5.] He claims that there was a failure to call a custodian of records to "confront" Warner about prior conviction and claims he received ineffective assistance of counsel. [1, p. 6.] Warner asserts that he was sentenced long before the signing of the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA] and would suffer prejudice if those standards were applied to his case. [1, p. 13.] He contends that a "new sweeping legal rule" makes his petition timely because he contends that the use of "pen packs" at his trial violated his rights under the Confrontation Clause. [1, p. 13. ]

The Respondent contends that Warner's petition is untimely because it was filed sixteen (16) years following the April 24, 1997, deadline as outlined by the AEDPA. [7, p. 5.] The Respondent suggests that "pen packs" are not testimonial in nature and cannot serve as a factual predicate to support Warner's claims and create an exception to the statute of limitations period. [7, pp. 6, 8.]

Warner contends that the AEDPA should not apply in his case because to apply the standards of the AEDPA to his case would impose an additional punishment on him. [8, p. 2.] He claims he is disadvantaged because he did not have a copy of the trial transcript available when he filed his petition. [8, p. 3.] Warner appears to assert that the copies of his prior convictions were never presented at trial in violation of his right to due process. [8, p. 4.]

The Respondent asserts that Warner's petition was filed too late and he names no "rare and exceptional" circumstances to warrant equitable tolling of the one-year limitation period imposed by the AEDPA. [9, p. 1.] The Respondent maintains that the failure to file a full trial transcript in this case was not an error warranting habeas relief. [9, p. 3.] In addition, the Respondent contends that the United States Supreme Court cases cited by Warner do not impact the limitations period in his case. [3, p. 5.]

ANALYSIS

According to the respondent, Warner's habeas petition is untimely filed in violation of the one-year statute of limitations provision of the AEDPA. A petitioner seeking federal habeas relief must file his federal petition within one year from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). However, the one-year statute of limitations is subject to tolling for the period when a properly filed motion for post conviction relief is pending in state court. 28 U.S.C. § 2244(d)(2).

All convictions prior to April 24, 1996, are considered final as of April 24, 1996, for purposes of the AEDPA's period of limitation. Unless the petitioner filed an application as contemplated by 28 U.S.C. § 2244(d)(2) on or before April 24, 1997, or met one of the 28 U.S.C. § 2244(d) exceptions to further toll the period of limitations, his application would be barred. Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998). Congress provided that "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." § 2244(d)(2). A "properly filed" petition would be one that was filed within any statute of limitations the state imposes. See Villegas v. Johnson, 184 F.3d 467, 469 (5th Cir. 1999). For a post-conviction application to be considered "properly filed" within the meaning of Section 2244(d)(2), the applicant must "conform with a state's applicable procedural filing requirements, " such as timeliness and location of filing. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) ("When a postconviction application is untimely under state law, that [is] the end of the matter' for purposes of § 2244(d)(2)"); Williams v. Cain, 217 F.3d 303, 306-7 n.4 (5th Cir. 2000).

Habeas applicants whose convictions became final prior to April 24, 1996, are entitled to a one-year grace period, or until April 24, 1997, to file for federal habeas relief. See Grillete v. Warden, 372 F.3d 765, 768 (5th Cir. 2004). According to the records filed in this case, no postconviction relief [PCR] motions were filed by Warner between April 24, 1996, and April 24, 1997. Warner filed a motion for leave to proceed in trial court for PCR on November 9, 1995. [7-3.] This motion was dismissed by the Mississippi Court of Appeals on February 13, 1996, because the appeal was still pending. [7-4.] Warner was directed to file the motion following disposition of the appeal. ( Id. ) The conviction and sentence were affirmed by the Mississippi Court of Appeals on March 26, 1996. Warner, 678 So.2d at 1031. Nothing was filed by Warner until several years later.

The docket of the Mississippi Court of Appeals indicates that Warner filed a motion for extension of time and an application for leave to proceed in the trial court in March and April of 1999, respectively. [7-5, p. 1.] Warner filed a motion for time to file a motion for rehearing on denial of PCR on October 11, 1999, and the docket reveals that the motion was denied on August 23, 2002. ( Id. )

Warner's motion for PCR was denied in 1999, and subsequent filings for similar relief were denied. [7-6, p. 1.] For example, Warner filed various motions for relief including a motion for leave to proceed in the trial court in 2011, 2012, and 2013. [7-5, p. 2.] These motions were also denied. [7-6, p. 1.] The motion for PCR filed in October 2011 was denied as successive and time barred. [7-6, p. 2.] On January 31, 2013, a third application for PCR was dismissed by the Mississippi Supreme ...


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