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Barnes v. Brewer

United States District Court, S.D. Mississippi, Southern Division

June 18, 2014

EARL L. BARNES, #166220, Petitioner,
v.
WARDEN FRANKLIN D. BREWER, Respondent.

REPORT AND RECOMMENDATION

JOHN M. ROPER, Sr., District Judge.

This matter is before this court on the Petition [1] for Writ of Habeas Corpus filed by Earl L. Barnes [Barnes], pursuant to 29 U.S.C. § 2254. A motion to dismiss [18] the petition was filed on behalf of the Respondent, Warden Franklin D. Brewer [Brewer], on February 12, 2014. The Court, having been advised in the premises and having considered the entire record, including the lodged state court record, recommends that Barnes' Petition for Writ of Habeas Corpus should be dismissed.

STATEMENT OF THE CASE

Barnes is challenging his conviction entered in the Circuit Court of Jackson County, on March 10, 2011. [1, p. 1.] Barnes entered a guilty plea to an aggravated assault charge and was sentenced as follows:

Sentenced to Twenty (20) Years in the custody of the Mississippi Department of Corrections, this Court recommends placement in a facility close to Jackson County (SMCI). The Defendant is to have no contact with the Victim or the Victim's Family. It is ORDERED that the Defendant shall pay all court costs, a fine of $2, 000.00 and $150.00 to the Crime Victim's Fund. The District Attorney's Office has within one year to determined [sic] Restitution. The Defendant shall make payment of $100.00 per month each and every month until paid in full starting 60 days after release.

[18-1.] Barnes' pro se petition for habeas corpus in this case seeks the following relief:

Ground One: Motion for relief § 99-39-5 I challenges [sic] guilty plea on grounds of ineffective counsel, unprofessional errors of substantial gravity, proximate errors resulted in my guilty plea and that, But for Attorney Keith Miller errors; I would not have entered the plea, amen.
Under Miss. Code Ann. § 99-39-11(2) Evidentiary hearing, a claim of coercion and ineffective counsel, attorney, their [sic] was no record of an evidence plea hearing pursuant to § 99-39-13 entitled to a the [sic] amount of time received, under Miss, Code Ann § 99-39-19 miligating [sic] evidence was available, my letter to Judge Robert Krebs, might have convinced the Judge "to impose a lighter sentence", my attorney, Keith Miller, refused to give Judge Krebs my letter and failed to inform me of my rights.

[1, pp. 1-15; 10, p. 2; 12.]

According to the Respondent, Barnes' claims are time barred under 28 U.S.C. § 2244(d). [18, p. 3.] Unless one of the exceptions to § 2244(d)(1)(B-D) apply, the Anti-Terrorism and Effective Death Penalty Act [AEDPA] requires that a federal habeas petition be filed within one year of the date that a petitioner's judgment of conviction becomes final. Cantu v. Johnson, 162 F.3d 295 (5th Cir. 1998). The Respondent asserts that Barnes' judgment became final on March 10, 2011, the day he was sentenced, because he had no right to a direct appeal from a guilty plea. [18, p. 3.]

The Respondent maintains that Barnes filed a Motion for Post Conviction Collateral Relief [PCR] in Jackson County Circuit Court as of the date that the document was notarized on January 12, 2012, as he could not have presented the document for mailing to prison officials prior to the notarizing of the document. [18, p. 4; 18-3, p. 6.] The Circuit Court denied the motion on January 26, 2012. [18-4.] A timely appeal was not taken from this decision, according to the Respondent. [18, p. 4.] Barnes filed an appeal of the denial of his motion for PCR on January 26, 2012. [18, p. 5; 18-5.] The motion was dismissed as untimely on June 20, 2012. [18-6; 18-7.] The Respondent asserts that Barnes' habeas petition was due on March 26, 2012. ( Id. ) This petition was filed on July 7, 2013, which is the date that Barnes signed the petition making the date the earliest filing date that could be considered by the Court under the "mailbox rule." [1; 18, p. 4; 18-3.]

ANALYSIS

The AEDPA was enacted primarily to put an end to the unacceptable delay in the review of prisoners' habeas petitions. "The purpose of the AEDPA is not obscure. It was to eliminate the interminable delays in the execution of state and federal criminal sentences, and the... overloading of our federal criminal justice system, produced by various aspects of this Court's habeas corpus jurisdiction." Hohn v. United States, 524 U.S. 236, 264-5 (1998). The AEDPA, which became effective on April 24, 1996, instituted a time bar as follows, in pertinent part:

(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 ...

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