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Avery v. State of Mississippi and Ronald King

United States District Court, S.D. Mississippi, Northern Division, Jackson

January 21, 2014

WILLIAM ANTONIO AVERY, #L6355, Petitioner,
v.
STATE OF MISSISSIPPI AND RONALD KING, Respondents.

REPORT AND RECOMMENDATION

F. KEITH BALL, Magistrate Judge.

This matter is before the Court on the Respondents' Motion to Dismiss (Docket No. 6) filed pursuant to 28 U.S.C. § 2244(d) and on the petition for writ of habeas corpus filed by William Antonio Avery, a state prisoner. Petitioner has responded with a pleading entitled "Petitioner's Brief in Support" (Docket No. 7). Having considered the petition and the Respondents' Motion to Dismiss pursuant to 28 U.S.C. § 2244(d), the undersigned recommends that the Motion to Dismiss be granted and the petition be dismissed with prejudice.

I. FACTS AND PROCEDURAL HISTORY

On May 20, 2003, Petitioner entered a guilty plea to possession of methamphetamine (41.5 grams) in the Lauderdale County Circuit Court. Avery v. State, 102 So.3d 1178, 1179 (Miss. 2012), reh'g denied, Sept. 18, 2012, cert. denied, Dec. 13, 2012 (Case No. 2011-CP-00664-COA). On June 20, 2003, the trial court sentenced Avery to fifteen years in the custody of the Mississippi Department of Corrections with five years to serve, ten years suspended, and five years of reporting probation under the supervision of the MDOC.[2] Id.

According to his MDOC Discharge Certificate, Avery was released from custody on May 1, 2008, to complete the suspended portion of his sentence. (Docket No. 2 at 44). On October 13, 2010, the trial court revoked his probation and ordered him to serve the previously suspended ten-year sentence. (Docket No. 2 at 51). On March 31, 2011, Avery filed a motion for post-conviction relief, which the trial court dismissed as time-barred. Avery, 102 So.3d at 1179. The Mississippi Court of Appeals affirmed.[3] Id. at 1182. The Mississippi Court of Appeals denied rehearing on September 18, 2012, and the Mississippi Supreme Court denied certiorari on December 13, 2012.

A pro se prisoner's complaint is considered filed when delivered to prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 270-71 (1988); Causey v. Cain, 450 F.3d 601, 604 (5th Cir. 2006). Although this Court did not receive the instant habeas corpus petition until February 4, 2013, the undersigned will consider January 31, 2013, the date on which Avery signed the petition, as the filing date in this Court.

II. DISCUSSION

In his petition, Avery asserts three grounds for habeas relief. Petitioner argues first that he received an illegal sentence when he received fifteen years in the custody of the MDOC (Docket No. 1). He argues that he "entered an open plea for 5 years" (Docket No. 1), [4] and thus, the sentence he received violated his constitutional rights.

Secondly, Petitioner argues that he was denied effective assistance of counsel when he was informed by his trial counsel that if he pleaded guilty to the lesser and amended charge of simple possession of methamphetamine, he would receive a sentence of five years (Docket No. 1). He essentially argues that his counsel was ineffective because the ultimate sentence he received is not what he was promised in the plea agreement.

Petitioner argues lastly that his plea was not voluntarily, intelligently, and knowingly entered because he believed that he was entering a plea to receive five years, and he did not receive that sentence (Docket No. 1).

The State answered Avery's petition with a Motion to Dismiss, arguing that his petition was untimely. Because this Court agrees with the State's argument and finds that Avery's petition was untimely filed, it will not address the merits of the petition.

Turning to the Motion to Dismiss, the State points to 28 U.S.C. § 2244(d) as the foundation of its position. 28 U.S.C. § 2244(d) 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 ...

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