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Doss v. Outlaw

United States District Court, N.D. Mississippi, Aberdeen Division

January 31, 2014

SHAWN DOSS, Petitioner,
v.
TIMOTHY OUTLAW and ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI, Respondents.

MEMORANDUM OPINION AND ORDER

SHARION AYCOCK, District Judge.

This matter comes before the Court on the pro se petition of Shawn Doss, a Mississippi inmate housed at the Marshall County Correctional Facility, in Holly Springs, Mississippi, for a writ of habeas corpus under 28 U.S.C. § 2254. Respondents have moved to dismiss the petition as time-barred pursuant to 28 U.S.C. § 2244. Petitioner has not responded to the motion to dismiss, and the time to respond has expired. For the reasons set forth below, Respondents' motion is granted, and the instant petition will be dismissed with prejudice.

Facts and Procedural History

On November 18, 2008, Petitioner pleaded guilty to one count of possession of marijuana, greater than thirty grams, with intent to sell in the Circuit Court of Lowndes County, Mississippi. On November 21, 2008, he was sentenced as an enhanced offender, pursuant to Miss. Code Ann. § 41-29-139 and § 41-29-147, to serve fifty years in the custody of the Mississippi Department of Corrections. ( See Resp'ts Mot., Ex. A). On or about November 16, 2011, Petitioner filed a motion for post-conviction relief in the Circuit Court of Lowndes County. ( See id., Ex. B). That court denied Petitioner's motion, and he subsequently filed an appeal in the Mississippi Supreme Court. ( See id., Ex. C). On November 27, 2012, the Mississippi Court of Appeals affirmed the judgment of the circuit court in a written opinion. ( See id., Ex. D); see also Doss v. State, 119 So.3d 1070 (Miss. Ct. App. 2012), reh'g denied, April 30, 2013, cert. denied, Aug. 22, 2013 (Cause No. 2011-CP-01870-COA). Petitioner filed the instant federal habeas action on or about September 16, 2013.

On November 15, 2013, Respondents filed a motion to dismiss the instant action, arguing that the petition is untimely under 28 U.S.C. § 2244(d). Petitioner did not respond to the motion.

Legal Standard

The instant petition for writ of habeas corpus is subject to the statute of limitations of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003). The issue of whether Respondent's motion should be granted turns on the statue's limitation period, 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.

28 U.S.C. § 2244(d)(1). The federal limitations period is tolled while a "properly filed application for State post-conviction or other collateral review" is pending. See 28 U.S.C. § 2244(d)(2). In "rare and exceptional circumstances, " the limitations period may be equitably tolled. ...


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