United States District Court, S.D. Mississippi, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
LOUIS GUIROLA, Jr., Chief District Judge.
This cause comes before the Court on the  Report and Recommendation of Chief United States Magistrate Judge John M. Roper. Magistrate Judge Roper recommends that this Court grant Respondent Ronald King's  Motion to Dismiss Petitioner Scott Tanner's Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 because the Petition is untimely. Petitioner Tanner filed an objection to the Report and Recommendation. This Court has reviewed the record, and based on the applicable law, finds that Tanner's habeas corpus petition is time-barred, and the Report and Recommendation should be adopted as the opinion of this Court.
Scott Tanner was convicted of one count of sexual battery in the Circuit Court of Jackson County, Mississippi. Tanner was sentenced to serve twenty (20) years in the custody of the Mississippi Department of Corrections in July 2008. (Sentencing Order, Mot. to Dismiss Ex. A, ECF No. 7-1). The Mississippi Court of Appeals affirmed Tanner's conviction and sentence on November 3, 2009. Tanner v. State of Miss., 20 So.3d 764 (Miss. Ct. App. 2009). Tanner did not file a motion for rehearing, or otherwise seek to appeal that decision through a writ of certiorari to the Supreme Court of Mississippi.
Over a year later, on December 13, 2010, Tanner filed an application for leave to file a motion for post-conviction collateral relief in the Supreme Court of Mississippi. (App. for Leave, Mot. to Dismiss Ex. C, ECF No. 7-3). The Supreme Court dismissed Tanner's application in April 2011, finding that it was deficient, and that Tanner had failed to correct the deficiencies despite having been granted time to do so. (Order, Mot. to Dismiss Ex. D, ECF No. 7-4). Tanner subsequently filed two more applications for leave to file a motion for post-conviction relief, which the Supreme Court of Mississippi dismissed in 2013 because his claims were procedurally barred, not supported with any evidence, or otherwise meritless. (Order, Mot. to Dismiss Ex. E, ECF No. 7-5; Order, Mot. to Dismiss Ex. F, ECF No. 7-6).
Tanner filed his petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 on May 28, 2013. Tanner raises the following claims: (1) "Amendation of Indictment Error;" (2) "Allowing Audio-Taped Telephone Conversation Between Tanner and A.L. Error;" and (3) "Error of Non Investigation by Trial Counsel." (Attachment to Petition, ECF No. 3). Tanner argues that the "overall... issue" is that his trial counsel was ineffective. He invokes his rights under the Sixth and Fourteenth Amendments to the United States Constitution.
Respondent Ronald King moves to dismiss Tanner's petition on the grounds that it is untimely under 28 U.S.C. § 2244(d). Tanner responds that his petition was timely because the deadline for filing it was subject to statutory and equitable tolling. Chief U.S. Magistrate Judge Roper recommends that the Motion to Dismiss be granted, and the petition dismissed as untimely, because Tanner failed to file the petition within the one-year period after his conviction became final under 28 U.S.C. § 2244(d).
Tanner objects to the Report and Recommendation on the grounds that it is based on "an inadequate review of the pleadings." (Objection, ECF No. 11). Tanner argues, as he does in response to the Motion to Dismiss, that his habeas petition was timely filed because the one-year period was tolled under 28 U.S.C. § 2244(d)(2). Tanner's objection largely focuses on his claim that he is entitled to equitable tolling. Tanner argues that in October 2010, he retained PPS Legal Research Clinic P.A., and relied on the representations by its director, Robert Tubwell, that the clinic would handle his case. According to Tanner, he ultimately discovered that the clinic was a scam, and it never filed a petition for habeas corpus on his behalf. Thus, Tanner argues, he is entitled to equitable tolling for the time period during which he believed the clinic was handling his case.
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) was enacted to "further the principles of comity, finality, and federalism" in the review of petitions for habeas corpus relief. Duncan v. Walker, 533 U.S. 167, 178 (2001) (citation omitted). The Act provides for a one-year limitation on the period for filing federal habeas petitions, which "serves the well-recognized interest in the finality of state court judgments." Id. at 179 (citation omitted). "This provision reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review." Id.
28 U.S.C. § 2244(d) provides:
(1) A 1-year period of limitation shall apply to an application for 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 laws of the United States is removed, if the applicant ...