United States District Court, N.D. Mississippi, Greenville Division
MICHAEL P. MILLS, District Judge.
This matter comes before the court on the petition of Daryl Hawkins for a writ of habeas corpus under 28 U.S.C. § 2254. The State has moved to dismiss the petition, and Hawkins has responded. The State has replied, and Hawkins has submitted a surrebuttal. The matter is ripe for resolution. For the reasons set forth below, the State's motion to dismiss will be granted and the petition will be dismissed as untimely filed.
Facts and Procedural Posture
Daryl Hawkins is in the custody of the Mississippi Department of Corrections and housed at the South Mississippi Correction Institution in Leakesville, Mississippi. Hawkins was convicted of attempted burglary in the Circuit Court of Bolivar County, Mississippi. He was sentenced as a habitual offender to serve life in the custody of the Mississippi Department of Corrections. On December 9, 2008, the Mississippi Court of Appeals affirmed Hawkins' conviction and sentence. Hawkins v. State, 11 So.3d 123 (Miss. Ct. App. 2008), reh'g denied, March 31, 2009, cert. denied, June 18, 2009 (Cause No. 2004-KA-01204). Hawkins did not file a petition for writ of certiorari in the United States Supreme Court challenging the state court decision affirming his direct appeal. Hawkins signed a Motion to Vacate on January 7, 2010, and the Mississippi Supreme Court stamped the pleading as "Filed" on January 12, 2010. He also signed an "Application for Post-Conviction Relief, " which the Mississippi Supreme Court stamped as "Filed" on February 18, 2010. The Mississippi Supreme Court denied both motions on March 4, 2010. Hawkins then signed a second "Application for Leave to Proceed in the Trial Court" on October 7, 2010, which the Mississippi Supreme Court stamped as "Filed" on October 13, 2010. The Mississippi Supreme Court denied the application on November 24, 2010. Hawkins then signed a third "Application for Post-Conviction Collateral Relief" which the Mississippi Supreme Court stamped as "Filed" on February 1, 2013. The motion was denied on March 28, 2013.
One-Year Limitations Period
Decision in this case is governed by 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 postconviction 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).
Hawkins' judgment became final 90 days after the state's highest court denied certiorari review of his case, September 16, 2009 (June 18, 2009, plus 90 days). See Roberts v. Cockrell, 319 F.3d 690 (5th Cir. 2003) (state court judgment becomes final when the time the petitioner could have sought review in the United States Supreme Court expires); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999). As such, the deadline for him so seek a petition for a writ of habeas corpus in this case became September 16, 2010. The federal deadline was, however, tolled for 48 days while Hawkins' Application for Leave to Proceed in the Trial Court was pending (from October 7, 2010, through November 24, 2010), which resulted in a new federal habeas corpus deadline of December 29, ...