United States District Court, S.D. Mississippi, Eastern Division
REPORT AND RECOMMENDATION
MICHAEL T. PARKER, Magistrate Judge.
THIS MATTER is before the Court on the Petition of Steven Barnes for Writ of Habeas Corpus  pursuant to 28 U.S.C. § 2254 and Respondent's Motion to Dismiss  pursuant to 28 U.S.C. § 2244(d). Having considered the submissions of the parties, along with the documents made a part of the record and the applicable law, the undersigned recommends that Respondent's Motion to Dismiss  be granted and that the Petition  be dismissed with prejudice.
On or about January 18, 1995, Petitioner was convicted of armed robbery in the Circuit Court of Covington County, Mississippi, and sentenced to serve a term of life in the custody of the Mississippi Department of Corrections. (Motion to Dismiss  Ex. A.) Petitioner appealed his conviction and sentence to the Mississippi Supreme Court, which assigned the case to the Mississippi Court of Appeals. On September 23, 1997, the court of appeals, in a written opinion, affirmed the trial court's judgment. ( Ex. C.) On March 19, 1998, the Mississippi Supreme Court denied Petitioner's petition for writ of certiorari. ( Ex. G.) Based on a review of the record and a review of the United States Supreme Court's automated docket system,  Petitioner did not file a petition for writ of certiorari with the United States Supreme Court.
More than ten years later, on June 23, 2008, Petitioner filed a motion for post-conviction collateral relief in the Mississippi Supreme Court. ( Ex. H.) On July 29, 2008, the Supreme Court denied the motion as time-barred, holding that here was no merit to Petitioner's "assertion that he has newly discovered evidence that was not discoverable at the time of his trial." ( Ex. I.) On January 31, 2013, Petitioner filed a petition for writ of mandamus in the Mississippi Supreme Court. ( Ex. J.) On February 12, 2013, the Supreme Court dismissed the petition. ( Ex. K.) On March 20, 2013, Petitioner filed his second motion for post-conviction collateral relief in the Mississippi Supreme Court. ( Ex. L.) On May 9, 2013, the Supreme Court denied the motion. ( Ex. M.)
Petitioner submitted his federal Petition for Writ of Habeas Corpus  on or about August 14, 2013. Respondent contends that the Petition was not timely filed and should be dismissed.
The Antiterrorism and Effective Death Penalty Act (AEDPA) specifies that 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); Egerton v. Cockrell, 334 F.3d 433, 435 (5th Cir. 2003). A state judgment becomes final "upon denial of certiorari by the Supreme Court or expiration of the period for seeking certiorari." Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999). Thus, the expiration of the time for review includes "the ninety days allowed for a petition to the Supreme Court following the entry of judgment by the state court of last resort." Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003).
On March 19, 1998, the Mississippi Supreme Court denied Petitioner's petition for writ of certiorari. ( Ex. G.) Accordingly, Petitioner's judgment became final-and the statute of limitations for habeas relief began to run-on June 17, 1998 (March 19, 1998, plus 90 days). Petitioner was required to file his federal habeas petition by June 17, 1999, unless he was entitled to statutory or equitable tolling. 28 U.S.C. § 2244(d)(1)(A). Petitioner filed his petition on August 14, 2013, more than fifteen years after his judgment became final.
Whether statutory tolling occurred during the period between the judgment becoming final on June 17, 1998, and Petitioner filing the federal habeas petition on August 14, 2013, is determined by reference to 28 U.S.C. § 2244(d)(2), which provides for tolling of the one-year limitation period during the time in "which a properly filed application for State post-conviction or other collateral review" remains pending.
Petitioner filed a motion for post-conviction relief in the state court on June 23, 2008, more than ten years after his judgment became final. ( Ex. H.) The limitation period expired more than nine years before Petitioner filed a motion for post-conviction relief. Therefore, Petitioner's motion for post-conviction relief did not toll the limitation period.
Petitioner alleges that he has newly discovered evidence in the form of an affidavit, dated March 1, 2007, from Perry King. King, along with Petitioner, participated in the underlying armed robbery. Petitioner's evidence invokes the "factual predicate" exception of 28 U.S.C. § 2244(d)(1)(D). Section 2244(d)(1)(D) provides that the limitation period begins to run from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."
King's affidavit is not "new" in the sense that the information contained therein was available to Petitioner throughout trial. See Lucas v. Johnson, 132 F.3d 1069, 1075 n. 3 (5th Cir. 1998) (noting that "new" evidence must be evidence which, inter alia, the petitioner could not have ...